When executing a Will, one of the requirements is that two different people witness the testator sign the Will and then sign the will themselves as witnesses. This seems fairly straightforward, right? For example, where someone uses a lawyer to assist them with drafting their Will and visits the lawyer’s office to execute the Will, witness attestation is usually not a problem, as potential witnesses such as the lawyer and somebody else in the office, such as a law clerk, are usually readily available.
In contrast, some people may choose to execute their Will in the comfort of their own home or in another environment where the people around them are often their family and/or friends. In some situations, those same family members and/or friends may be beneficiaries pursuant to the Will that the testator is executing. Where a beneficiary signs the Will as a witness, this is when potential problems arise.
Section 12(1) of the Succession Law Reform Act, RSO 1990, c S.26 (“SLRA”) states:
Witness etc., beneficiary from will – Bequests to witness void
12 (1) Where a will is attested by a person to whom or to whose then spouse a beneficial devise, bequest or other disposition or appointment of or affecting property, except charges and directions for payment of debts, is thereby given or made, the devise, bequest or other disposition or appointment is void so far only as it concerns,
(a) the person so attesting;
(b) the spouse; or
(c) a person claiming under either of them,
but the person so attesting is a competent witness to prove the execution of the will or its validity or invalidity.
As section 12(1) suggests, if a beneficiary (or their spouse, which is an important aspect to note) signs as a witness, any bequest that the testator made to them in the Will is void. That does not mean that the entire Will is invalid, just that the specific bequest to that beneficiary is nullified.
This was exactly the case in Re Vaudrey, 2019 ONSC 7551. Among other legal issues, one of the testator’s daughters, who was set to inherit the residue of the estate under the Will, was one of the witnesses to the Will. The Court found that pursuant to section 12(1), the bequest of the residue to the daughter was void, but the Will was nevertheless valid.
Further, Section 12(3) of the SLRA goes on to state:
Where no undue influence
12 (3) Despite anything in this section, where the Superior Court of Justice is satisfied that neither the person so attesting or signing for the testator nor the spouse exercised any improper or undue influence upon the testator, the devise, bequest or other disposition or appointment is not void.
In Re: O’Neill Estate, 2024 ONSC 2228, the testator’s Will did not have two proper witnesses as required. In attempting to have the Will validated under section 21.1 of the SLRA (which is a blog for another day), the testator’s brother said that he saw the testator sign the Will, but did not sign as a witness because he was a beneficiary. The Court was concerned with relying on his evidence, because:
“this effectively means that the Applicant is attesting to the validity of the Will and raises the question as to whether or not the presumption in s. 12 of the Act should apply. While the Applicant did not sign the Will as a witness, he was the only witness to the signature, and it is his affidavit evidence on which the Court must rely. So, he is effectively doing what the statute discourages by acting both as a witness and a beneficiary.”
Regardless of their concern, the Court found that because there was nothing in the evidence or the circumstances to suggest undue influence, the bequest to the testator’s brother was not void.
While the voiding provision under section 12(1) of the SLRA is not absolute, and a beneficiary or their spouse signing as a witness to the Will does not automatically void the bequest to that beneficiary, it certainly increases the likelihood of that happening.
