In a recent decision out of British Columbia Wolk v. Wolk 2021 BCSC 1881, the court ruled that the gifts in the will were valid, despite not meeting the formal requirements under the statute. The deceased left a will which was overseen by three signing witnesses, two of whom were the beneficiaries of his estate. Justice Tucker was asked to rule on the validity of the will and the validity of the gifts in the will.

His Honor declared that the will itself was valid. Justice Tucker reviewed section 37(1) of Wills, Estates and Succession Act (“WESA”) which set out the formal requirements to make a valid will, as well as section 40 of WESA which states that a will can be valid despite one of the signing witnesses receiving a gift. His Honour found that there was no issue with respect to the validity of the will itself as it was not in contravention with the formal requirements of the legislation.

However, His Honour had to make a separate ruling with respect to the validity of the gifts themselves. According to section 43 of WESA, a gift to a signatory witness is automatically void by statute, but the court may declare such a gift valid on application. Justice Tucker found that facts of this case supported a finding that the gifts were made with considered testamentary intent. In this case, the deceased worked out-of-town projects and the beneficiaries acted as primary caretakers of his child, bearing much of the expense of her upbringing. Justice Tucker made a fact finding that the deceased appreciated their emotional and financial support and wanted them to have his assets if anything happened to him. As a result, Justice Tucker declared that the gifts made out to the beneficiaries were valid, despite not meeting the formal requirements under section 43 of the WESA.

It is unclear how this decision would have unfolded in Ontario, however we have analogous legislation in the Succession Law Reform Act. Sections 3-7 of SLRA govern the formal requirements to make a valid will, and section 12 of SLRA voids any gifts made to a person who acted as a witness to the will.

Thank you for reading.