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Dangers of DYI Will Kits
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The beneficiary witness; a DIY pitfall

“The abridged version of this blog was originally published by The Lawyer’s Daily, part of Lexis Nexis Canada Inc. Part One was published on July 7, 2020. Part two was published on July 10, 2020.

This blog will examine one of the most common mistakes made by people using DIY homemade wills – asking a beneficiary to witness the execution of the will.

A growing practice in Ontario is for people to download a will kit and make their own wills. 1 At first glance it’s a less expensive alternative to using lawyers.  But, only at first glance.  The mistakes made by people drafting and seeing to the execution of their own wills can and sometimes do lead to litigation.  One example of how this might happen surrounds the rules about who may be a witness to a will.

The witness requirement

Section 4 of the Succession Law Reform Act2 provides that a testator must sign a will in the presence of two or more witnesses who are both present at the same time, and those two witnesses must sign the will in the presence of the testator. Non-compliance with these rules can lead to the will being set aside.  This topic has already been addressed by my colleague in his blog entitled Formalities of Execution In Ontario.

Imagine this scenario.  Fred lives alone.  He does not want to waste any money on lawyers especially when it seems so easy to download a will kit.  He has two children.  One is a good for nothing son who spends his day sunning in the backyard and smoking dope.  The other is his angelic daughter who juggles a full time job, a family and still finds time to take care of dear old dad.  So Fred downloads an online will kit.  He then proceeds to make his own will and  bequeaths everything to his daughter.  Fred calls his daughter over and signs the will in front of his daughter and her husband.  They  sign as witnesses.  Is there a problem?  Maybe.  The good for nothing son goes to an estate litigator who points to Section 12 of the Succession Law Reform Act.  Section 12(1) of the Act provides:

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.

Section 12(1) makes it clear that the entire will does not become invalid simply because a beneficiary has witnessed the will. Rather, the devise3, bequest4 or other disposition to the beneficiary witness under the will is void.  What happens to the ‘void’ gift under the will? If the testator did not include a “gift-over” to another beneficiary, the gift will fall into the residue of the estate5, and will be divided as per the terms of the residue clause.  If the beneficiary/witness is included as a residuary beneficiary, unfortunately this gift is also void and the remaining (non-witness) residuary beneficiaries may be entitled to a share in that gift. Where the beneficiary/witness is the sole residuary beneficiary, the entire residue may fail and be distributed in accordance with the rules of intestacy.

“Saving provisions”

However, the analysis does not stop at section 12(1). Under section 12(3) of the Act, a gift to the beneficiary/witness may still be valid under what the courts have referred to as the “saving provisions”6 Section 12(3) provides:

Where no undue influence

(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.

Exception

(4) Where a will is attested by at least two persons who are not within subsection (1) or where no attestation is necessary, the devise, bequest or other disposition or appointment is not void under that subsection.

Section 12(3) provides for two ways in which the gift to the beneficiary/witness may still be valid. The first is where the beneficiary/witness can establish that they did not exercise any undue influence over the testator. The courts have stated that section 12(1) creates a rebuttable presumption of undue influence.7 The rebuttable presumption operates to place the onus on the beneficiary/witness to establish that, on the balance of probabilities, they did not exercise improper or undue influence over the testator. Where the court is satisfied that the beneficiary/witness has successfully rebutted the presumption, the gift will be valid. The second instance where a gift to a beneficiary/witness may be valid is where at least two other persons witnessed the will in addition to the beneficiary/witness.

Order to Beneficiary Witness

A beneficiary who has witnessed the will may be called upon to prove to the court that they did not exercise any undue influence over the testator. Rule 74.15 of the Rules of Civil Procedure provides that “any person who appears to have a financial interest in an estate” may move,

Order to Beneficiary Witness

(f) for an order (Form 74.40) requiring a beneficiary or the spouse of a beneficiary who witnessed the will or codicil, or who signed the will or codicil for the testator, to satisfy the court that the beneficiary or spouse did not exercise improper or undue influence on the testator;

When a beneficiary/witness is served with such an order, and they wish to claim the benefit in the will, they must bring a motion to the court and ask the court to find that there was no undue or improper influence exerted on the testator. Where the beneficiary/witness does not bring such a motion, the estate trustee may proceed to probate the will, which will have a note attached to it stating that the benefits to the beneficiary/witness under the will are void under section 12 of the Succession Law Reform Act.

Cases dealing with a beneficiary/witness

The court in Grey v. Boyd was asked to declare as void certain bequests made by a dying  testator to her partner, Mr. Grey. Mr. Grey was the sole beneficiary under her will who had arranged for a visiting clergyman to write the will on the testator’s behalf. Mr. Grey witnessed the will. It was argued that Mr. Grey exercised undue influence over the testator given his input when the testator was writing the will and given the testator’s failing health. The court did not ultimately decide the matter, however it commented on the saving provision as follows:

Under s. 12 (1) of the SLRA where a person is a witness to a Will and who is receiving a bequest or other disposition of property, the devise or bequest to that person is void. However, s. 12(3) is a saving provision which provides that where the court is satisfied that the person so witnessing the Will did not exercise any improper or undue influence upon the testator, then the devise or bequest is not void. If there are more than two persons attesting to the Will in this case, then s. 12 (4) applies.8

In Frye v Frye Estate9, a testator left shares in the family business to his sister, and his sister’s husband witnessed the will. A brother of the testator contended that his sister exercised undue influence over the testator. The court heard that the testator asked his sister “if you were me what would you do?”, to which she responded “You’re not married, you don’t have a wife and you don’t have children […] If I were you, I would leave my shares equally to my siblings […] You do what you want to do […] but you have to do how you feel”. The court found that these words did not constitute undue influence. In addition, the court heard that the testator was a headstrong individual who did what he wanted. Friends of the testator testified that he expressed an intention to leave the shares to his sister. The trial judge’s decision was set aside by the Court of Appeal for Ontario10, however the Court of Appeal did not consider the beneficiary/witness issue.

In Warren Estate, Re11, the testator was looked after in his final years by his two sisters. The testator’s two sisters were witnesses to his will and were also the only beneficiaries under the will. The court found that the sisters did not exercise any undue influence over the testator. The court considered that the testator was of rational and sound mind when he executed the will, he intended to benefit his sisters, the sisters provided comfort and companionship to the testator after his wife died and no dominant-servient relationship existed between either of the sisters and the testator.

Conclusion

The logic behind invalidating a bequest, where the witness is either the beneficiary or a spouse of a beneficiary, is based on the idea of having objective witnesses. A beneficiary (or their spouse) has a vested interest in upholding the validity of the will.12

But, as indicated in a review of the cases and articulated by the author of  Feeney’s Canadian Law of Wills, Fourth Edition, the “…courts have expressed a dislike for the rule and, while it stands, courts are likely to strive to get around its application”.  Nonetheless, at first blush, bequests to people who are also witnesses are void unless the beneficiary can show no undue influence was exerted on the testator.

In our fictional scenario Fred saved thousands of dollars by not going to a lawyer to draft his will.  But, even if Fred’s daughter wins in court the legal fees to defend the bequest will likely cost far more money.  Moreover, even though the cases dealing with this situation seem to consistently use the saving provision under section 12(3) to uphold these bequests, every case turns on its own facts.  It could be that in the next case the court will find that the beneficiary who witnessed the will did exercise improper or undue influence over the testator and the bequest will be void, or simply that the beneficiary could not meet the onus of providing that he or she did not exercise undue influence on the balance of probabilities.

The bottom line is that where a beneficiary witnesses the will, the court will have an interest in hearing whether or not the testator gave the benefit freely and in the absence of undue influence. A beneficiary/witness must be prepared to come to court to prove this if required. This is so because one of the statutory safeguards in the preparation of a valid will, the attestation of two persons with no interest in the will, is no longer present.

Perhaps paying a lawyer to draft a will and seeing to its proper execution might be worth it if that expenditure saves the intended beneficiary the greater expense of litigation.

Footnotes
  1.   Canadians’ legal will options, made easy https://www.thestar.com/life/advice/2018/07/31/canadians-legal-will-options-made-easy.html
     
  2.   Succession Law Reform Act R.S.O. 1990, c. S.26, s. 12
     
  3.   A devise is a testamentary disposition of land
     
  4.  A bequest is a testamentary disposition of personal property
     
  5.   Section 23, Succession Law Reform Act
     
  6.   Grey v. Boyd 2011 ONSC 7288, 2011 CarswellOnt 14162 Ontario Superior Court of Justice at para 39
     
  7.   Frye v. Frye Estate 2006 CarswellOnt 3186 Ontario Superior Court of Justice
     
  8.   Grey v. Boyd 2011 ONSC 7288, 2011 CarswellOnt 14162 Ontario Superior Court of Justice at para. 39
     
  9.   Frye v. Frye Estate 2006 CarswellOnt 3186 Ontario Superior Court of Justice
     
  10.   Frye v. Frye Estate 2008 ONCA 606, 2008 CarswellOnt 5207
     
  11.   Warren Estate, Re 1993 CarswellSask 514Saskatchewan Court of Queen’s Bench
     
  12.   Gillis Estate, Re, (1998) N.S.J. No. 164 (N.S. Prob. Ct.), Justice MacLellan comments upon the logic behind the concept of invalidating a bequest in a will to a witness or the spouse of a witness at paragraph 6.

    See paragraph 24 of Brown Estate v. Bon 2003 CarswellNB 275, 2003 NBBR 236, 2003 NBQB 236, (2003) N.B.J. No. 233, 123 A.C.W.S. (3d) 780, 1 E.T.R.(3d) 1, 263 N.B.R. (2d) 287, 689 A.P.R. 287.
     

James Dunphy

The author of this blog is James Dunphy. James is an associate at Wagner Sidlofsky LLP.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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