Having a Last Will and Testament means having a say in what happens to your estate after your death. It’s one of the most important documents you’ll ever make, so if you are going to make one, you would want to do it right. In British Columbia, wills must meet certain legal requirements, including proper witnessing. There are restrictions on who can and can’t witness a will in BC.
In BC, a witness to a will should be someone who is over the age of majority and does not have a personal interest in your estate. Furthermore, the executor of a will can witness a will as long as they are not named in the will. If you have the wrong person witness the signing of your will, gifts to beneficiaries may be voided unintentionally. Additionally, if your will doesn’t meet formal witnessing requirements, it may be unenforceable after your death. This can lead to delay, costly estate litigation, and the possibility of your estate being distributed in a way you did not intend.
To ensure your family is protected and your final wishes are effectively documented, it’s strongly recommended that you seek legal advice. The wills and estates attorneys at Onyx Law Group have the experience and expertise necessary to prepare your will and put your mind at ease. Contact us today for a consultation.
Today’s post contains a deep dive into the legal requirements for witnessing a will, how to ensure your will is properly witnessed, and the consequences of invalid witnessing.
Who Can Witness a Will in BC?
BC estate law (WESA, section 40) stipulates that both witnesses to the will-maker’s signature must be over the age of majority (19+). The witnesses should also be of sound mind. Witnesses aren’t required to read the will; they just need to watch the will-maker sign it.
It’s generally best practice not to have a guardian or executor named in your will serve as a witness. Ideally, witnesses should be independent and not have a personal interest in your estate or its administration.
Who Can Not Be a Witness to a Will in BC?
A person under the age of 19 can’t be a witness to a will in BC. A person who lacks mental capacity shouldn’t serve as a witness, nor should a guardian or executor named in the will, beneficiaries named in the will, or the spouse of a beneficiary, guardian, or executor named in the will.
Can a Family Member Act as a Witness?
Yes, a family member such as a parent or cousin can act as a witness—as can a friend, neighbour or a co-worker—subject to the legal requirements of a will. It depends on their relationship to your estate. If they’re not a beneficiary and have no potential claim to your assets, then it’s usually fine. But if a family member is named in your will – or if there’s a chance that a person claiming an interest under your will could be them or his or her spouse – they should not serve as a witness.
Why? Because under BC’s estate law, a gift to a witness (or their spouse) can be declared void, even if the will maker intended to include that person. The courts may fix the issue, but it takes time, money, and strong evidence to prove your intent. It’s far safer to choose neutral, independent witnesses who won’t be affected by the terms of your will. That way, your family won’t be left trying to fix costly mistakes after you’re gone.
Can a Lawyer Witness a Will?
Yes, a lawyer can witness a will in British Columbia, and often does. In fact, many people choose to have their estate planning lawyer serve as one of the two required witnesses when the will is signed. This is because having legal professionals as witnesses present helps avoid confusion later on, especially if the validity of the will is ever challenged.
It’s also helpful because the lawyer can confirm that the will maker intended to sign the will freely, with full mental capacity, and without any outside pressure. If needed, the lawyer may even provide supporting evidence in court to protect the integrity of the will. While lawyers don’t have to witness a will, their presence adds an extra layer of credibility and peace of mind for everyone involved.
Legal Requirements for Witnessing a Will in BC
To make a valid will, you must ensure it meets the formal requirements set out in BC’s Wills, Estates and Succession Act. Section 37 of the Wills, Estates and Succession Act (“WESA”) states that to be valid, a will must be:
- In writing;
- Signed at its end by the will-maker and
- Signed by two or more witnesses in the presence of the will-maker.
In British Columbia, the usual procedure is for the will-maker to sign the will on its last page with two witnesses present at the same time who also sign the will immediately after the will-maker’s signature. Legal requirements in other provinces or other countries vary—we’re focusing only on BC wills in today’s post.
Is Notarization Necessary for Wills in BC?
In BC, a will does not need to be notarized to be valid. The lawyer who prepared your will, a commissioner, a notary, and/or their staff may act as a witness, but it is not mandatory.
That being said, notarization isn’t completely futile. For example, if one of the witnesses signs an affidavit of execution in front of a notary public or commissioner, that document can be submitted to the probate court as evidence. This can smooth things out if questions arise later. But from a legal standpoint, a notarized will isn’t more “official” than one that simply follows the proper witnessing rules. If your goal is to ensure your wishes are followed exactly, focus on getting the formalities right, not the stamp.
Why Is Witnessing a Will Important?
Your Last Will and Testament doesn’t come into effect until after you’ve passed away. You are no longer around to confirm that you signed the document and that you did so voluntarily. When the formal requirements are met by having two or more witnesses physically present to watch you sign, it provides assurance that your will reflects your testamentary intent and that your signature is authentic.
A properly executed will also gives rise to the presumption that you had the appropriate mental capacity to make a valid will and that you knew and approved of the will’s contents. The presumption can be challenged after your death, but the person or people who challenge your will must provide proof of suspicious circumstances (lack of capacity to form testamentary intent, fraud, coercion, etc.).
If your will has to go through the probate process or the validity of your will is called into question after your death, your witnesses can provide valuable evidence to defend your will. An affidavit of execution from one of the witnesses, sworn in front of a commissioner or notary public, can be submitted to the probate court. That document attests to the fact that the witnesses were present and observed you signing your will.
Do All Wills Have to Be Witnessed?
Holographic wills don’t have to be witnessed (but it’s helpful if they are). A holographic will is one that is written out in the will-maker’s handwriting and signed by the will-maker. These types of wills are not effective in British Columbia without obtaining a court order “curing” the failure to conform with formal requirements. Handwritten wills are susceptible to disputes and legal challenges. We recommend avoiding them whenever possible.
The Wills, Estates, and Succession Act also contains an exception to witnessing requirements for members of Canadian military forces while placed on active service.
Common Mistakes to Avoid When Choosing Witnesses
One of the biggest mistakes is choosing a beneficiary or a beneficiary’s spouse to serve as a witness. WESA section 43 states that a gift to a witness or the spouse of a witness is void unless a court order is obtained declaring the gift is to take effect.
In other words, if a beneficiary named in your will or their spouse acts as a witness when your will is signed, they won’t receive their inheritance without applying to the court and proving that you intended to make the gift, despite the conflict of interest. For the same reason, it is also a mistake to choose anyone who may potentially inherit from your estate, such as the child or children or named beneficiaries.
Choosing witnesses who can’t be physically present can also be a mistake. The physical presence of two or more witnesses who signed at the same time as the will-maker used to be a requirement. In the digital age, electronic presence is permissible, but there are specific requirements that must be met or the electronic witnessing won’t be valid (see section 35.2 of the Wills, Estate and Succession Act).
Are Electronic Wills Valid in BC?
Now that we’ve discussed electronic witnessing, you’re probably wondering about electronic wills. On December 1, 2021, British Columbia estate law was updated to permit electronic wills.
For an “e-will” to be legally valid, it must be properly witnessed by two or more witnesses who are in each other’s electronic presence and the electronic presence of the will-maker at the same time (e.g., videoconferencing via Zoom or Skype). Electronic signatures can be used for wills in electronic form.
What Happens if a Will Is Witnessed Incorrectly?
There can be serious, negative consequences when a will is improperly witnessed. Your surviving loved ones and the executor of your estate may face stress and delay that could have been avoided. Legal disputes and court intervention are very likely, which means more stress, delay, and increased costs.
As we already mentioned, a gift in a will is forfeited if a beneficiary, their spouse, or anyone who may potentially benefit under your will acts as a witness. If any of those persons act as witnesses, it voids any gift in your will to that person, unless they can prove to the court that you intended to make the gift to them. Extrinsic evidence of your intention will be needed. A court application costs time and money, and it may not ultimately be successful in convincing the court of your intention. The safer bet is to avoid having any beneficiary, potential beneficiary, or their spouse serve as a witness.
Your will is very susceptible to legal challenge after your death if there are issues with the way it was witnessed. An interested party can apply to the Supreme Court for an order deeming your will to be of no force and effect.
If your will doesn’t meet the formal witnessing requirements, it’s invalid. Even if no one challenges it, someone (e.g., your executor) will have to apply to the Supreme Court to obtain an order curing the deficiencies under WESA, section 58. The person seeking the court order curing your will must prove that the document is an authentic record of your final wishes for the court to exercise its power.
If the court isn’t satisfied (i.e., the application isn’t successful), your next most recent valid will (if any) governs how your estate is distributed. If there is no other valid will to fall back on, your estate assets must be distributed in accordance with the rules of intestacy, as if you died without a will.
How to Ensure Your Will Is Properly Witnessed
This article was intended to provide helpful tips and information, but a blog is never a substitute for legal advice. Working with a skilled legal professional is the best way to ensure your will is properly witnessed and meets the formal requirements of BC estate law. The estate planning lawyers at Onyx Law Group can assist you by preparing a will that reflects your wishes, then arranging for your will to be properly executed and witnessed.
When Should You Consult a Lawyer About Witnessing a Will?
Ideally, you should consult with a lawyer whenever you prepare or update your will. Estate lawyers have specialized knowledge of estate law, so that they can create a legally valid will that achieves your goals.
Your lawyer will meet with you to discuss your estate plans and wishes, advise you of any risks or issues you may not have thought of, and provide you with individualized legal advice. Your estate lawyer will then prepare your will with custom clauses to ensure your estate plan operates as you intended. Skilled estate lawyers can also advise you on ways to minimize estate taxes, avoid the probate process, and ensure beneficiary designations are in line with your overall estate plan. Once your will is as you want it, your lawyer will oversee its execution and proper witnessing.
Some people decide against working with a lawyer, particularly where their estate is relatively small or simple. It isn’t mandatory to have a will drafted by a lawyer, but there are certainly situations where legal advice is strongly recommended. For example, legal advice is advisable in these situations:
- Complex estates, unusual circumstances, complicated family dynamics
- Where the new will departs substantially from previous will(s) or disinherits a child or spouse, etc. (i.e., where the will maker’s intention may later be called into question)
- Concerns about the will-maker’s capacity
- Concerns about undue influence
- When the will-maker is not physically able to sign the will
On that last point, if a will-maker can’t sign their will because of illness or disability, they can sign with an X, or the will can be signed at the will-maker’s direction on their behalf. The person signing on their behalf must sign in the will-maker’s presence, and in the presence of the other witness(es). A skilled lawyer can ensure proper procedure is followed and documented.
Need to Consult a Lawyer About Witnessing a Will?
If you’re unsure of how to write a valid will or properly witness a will in BC, reach out for trusted advice. A will is a legal document, and it’s important that you consult with a lawyer when creating any legal document.
The wills and estate planning team at Onyx Law Group in Vancouver can ensure that your estate is in order, which will alleviate any stress you and your family might be facing and put your collective minds at ease. We have the knowledge and experience required to craft a will that reflects your wishes. Reach out to us today for a consultation to discuss the preparation of your will.
FAQs
Wills are powerful legal documents, but they need to meet strict requirements to be valid. One common area of confusion is witnessing. Who can do it, who shouldn’t, and what happens if you get it wrong? Below are quick answers to some of the most frequently asked questions about witnessing a will in BC.
Can a Beneficiary Witness a Will?
A beneficiary can witness a will, but they absolutely shouldn’t. If a beneficiary, or his or her spouse, acts as a witness, their gift under the will is automatically void unless a court order says otherwise. Even if the will maker intended to leave them something, it won’t count without extra legal steps.
Can My Parents Witness My Will?
Your parents can witness your will as long as they aren’t named as beneficiaries and don’t stand to gain from your estate. If they are beneficiaries or married to someone who is, it’s best to choose other witnesses present who have no personal interest in the will.
Who Can Sign a Will?
Only the will maker can sign their will, and they must do so voluntarily, with full mental capacity. The will must also be signed by two witnesses present at the same time, who are 19 or older and mentally competent. These witnesses must sign immediately after the will maker.
What Makes a Will Invalid in BC?
A will may be invalid if it’s not properly signed or witnessed, if the will maker lacked capacity, or if there’s evidence of fraud or coercion. A gift to a person claiming under the will may also be void if they acted as a witness. Any of these issues can result in costly court challenges or the will being set aside.