DIY Will Declared Valid, as Were Gifts to Signing Witnesses
In Wolk v. Wolk, 2021 BCSC 1881, a BC man named Dawson Wolk prepared his own will in 2016 and signed it in front of three witnesses. Two of the witnesses—Dawson’s mother and father—were beneficiaries of the entire estate under his will. After Dawson’s death in 2017, the BC Court concluded that the will Dawson prepared on his own was valid. The Court also ruled that the bequests to Dawson’s parents were valid, despite the default rule that a gift to a signatory witness is automatically void. The evidence satisfied the Court that Dawson made the gifts to his parents with “considered testamentary intent.” He meant to give his estate to them, even though they were witnesses to his will.
Man wishes to thank his parents for emotional and financial support
Dawson was a qualified red seal ironworker and worked on major construction projects. He was unmarried and had two daughters, Jessica and “E.” Dawson developed substance abuse issues and entered a recovery program. In 2015, he began living with his parents, Michael and Lynda, in their home whenever he was not working on an out-of-town project. Living with Michael and Lynda gave Dawson the stability and support he needed to stay in recovery. During this period, Michael and Lynda helped Dawson financially by paying debts he owed to third parties. As Dawson continued to work out-of-town, Lynda and Michael also took on the role of being E’s primary caretakers. E. resided full-time with Michael and Lynda, and they looked after her needs and education and much of the expense of her upbringing. In the summer of 2016, Dawson told Michael and Lynda how much he loved them and appreciated their emotional and financial support, and that he wanted them to have his assets if anything happened to him. He said he intended to make a will leaving his estate to them.
Preparation of DIY will
Dawson prepared his own will. He read a draft of it to Michael and Lynda and confirmed that he intended to leave them his estate. He then produced a document entitled “Last Will and Testament of Dawson Robert Wolk” (the “Document”). The Document revoked all former wills, named Michael (and Lynda in the alternative) as guardians to Dawson’s children and executor of the will, declared his insurance and pension proceeds to form part of his estate, directed the payment of debts and provided a list of assets. The Document set out the following gift provisions:
I leave to my parents, Michael Dawson Wolk and/or Lynda Ruth Wolk should they survive me all monies and properties of my estate with the proviso that they in turn provide a portion of the estate to my daughters, Jessica Berens and [E.H.] either in trust or in a protected format such that they will in turn receive a stipend when they reach the age of twenty-five (25) should they also survive me. This includes the repayment of monies to my parents for loans and assistance given me over the years including the overseeing of my daughter [E.H.].
My parents can decide if the money goes to education payments, RRSPs’, or a similar portfolio to protect my daughters for later in life.
The Document was signed by Dawson, Michael, Lynda and a fourth person, Robert Krall, all on September 12, 2016, and all in the presence of one another (and also in the presence of Mr. Krall’s wife). On February 11, 2017, Dawson signed a beneficiary designation change form under his insurance coverage and pension plans, making Michael the sole beneficiary under both plans, and Lynda the contingent beneficiary should Michael predecease Dawson.
Was the DIY will valid?
Dawson died on July 14, 2017. Michael and Lynda continued as E.’s caretakers and were appointed as her guardians. No other will or testamentary document was found after Dawson’s death. Nevertheless, Michael’s probate application was rejected, requiring an application for orders declaring the Document to be a valid will under s. 37(1) and/or s. 58 of BC’s Wills, Estate and Succession Act, S.B.C. 2009, c. 13 (“WESA”), and declaring the gifts to Michael and Lynda valid and effective under WESA, s. 43(4). The Court readily concluded that the Document complied with the formalities of WESA. The evidence established that Dawson signed the Document in the presence of four witnesses, all of whom were all present at the same time and three of whom then signed the Document in Dawson’s and one another’s presence. The Document was a valid will under WESA, s. 37, https://onyxlaw.ca/avoid-bc-estate-litigation-by-making-a-will-that-meets-formality-requirements/ so there was no need for recourse to the curative powers in WESA s. 58 in the circumstances. https://onyxlaw.ca/bc-estate-litigation-faq-can-a-handwritten-document-alter-an-earlier-will/
Were gifts to witnesses valid?
Section 43 of WESA https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01#section43 sets out BC law respecting gifts to witnesses. It states that a gift in a will is void if it is to a witness to the will-maker’s signature or to the spouse of that witness. The remainder of the will is not affected if a gift is void for that reason. However, WESA s. 43 also provides that an application can be brought asking the Court to declare the gift is not void. The Court must be satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will. Extrinsic evidence is admissible for the purposes of establishing the will-maker’s intention.
In Wolk v. Wolk the Court was satisfied that the gifts to Michael and Lynda were made with “considered testamentary intent” and declared them to be valid. On the evidence it was readily apparent that Dawson intended for Michael and Lynda to receive his estate notwithstanding that they signed as witnesses.Dawson expressly articulated the basis for the gift as gratitude for their emotional and financial support during difficult periods of his life. The evidence disclosed a close and loving family relationship. He had also relied on Michael and Lynda to take care of E., a role he clearly contemplated they would continue under his guardianship appointment in the Document. Finally, approximately five months after signing the Document, Dawson changed his beneficiary designations to bring them into accord with the Document. Notably, the insurance and pension benefits so directed constituted the majority of Dawson’s estate.
Take home point on DIY wills and gifts to witnesses
A DIY will can be valid if it complies with certain legal formalities, including requirements with respect to execution and witnessing in accordance with WESA s. 37(1). If it does not meet those requirements, it may be possible to “save” or “cure” the document under WESA s. 58 so it is given effect as a valid will.
A gift to a signatory witness is automatically void by statute, but the court may declare such a gift valid on application under WESA s. 43. The central concern on such an application is the testamentary intention of the deceased person.