Testamentary intent prevails over statutory provision voiding gift to signatory witness: B.C. case

Will maker stated that gifts were meant to thank his parents

Testamentary intent prevails over statutory provision voiding gift to signatory witness: B.C. case

The B.C. Supreme Court recently allowed the signing witnesses to receive certain bequests in the will as gifts despite the applicable legislation automatically voiding gifts to signatory witnesses, an estate litigation lawyer has noted.

The court made this decision on the basis that this was what the deceased wanted, said Trevor Todd, a Vancouver-based lawyer, in a post titled Gifts to Witnesses of a Will (S. 43 WESA).

In Wolk v Wolk, 2021 BCSC 1881, Dawson, who was in a recovery program for his substance abuse issues, started living with his parents, who provided him with the stability and support to stay in recovery, helped him pay his debts and became the primary caretakers of his younger daughter, born in 2013. In August 2016, Dawson told his parents how much he loved them and appreciated their emotional and financial support, then read them a draft of his will, which would leave them his estate.

In September 2016, a document was signed by Dawson, his parents and another witness. The document declared that Dawson’s insurance and pension proceeds formed part of his estate, which would be left to his parents. Gift provisions vested to his parents all his estate’s monies and properties, provided that they would give a portion to his daughters. Dawson also named his father — and his mother, in the alternative — as executor of the will and as guardian to his two daughters.

Dawson died in July 2017. His father brought a probate application, which was rejected. The father thus filed an application seeking orders declaring the document as a valid will under s. 37(1) of the Wills Estates and Succession Act, SBC 2009, c. 13, and declaring the gifts to him and to his wife as valid and effective under s. 43(4) of the legislation.

On the first issue, the Supreme Court of British Columbia ruled that the document complied with the legislation’s formalities and was a valid will under s. 37(1). The court found that the document was signed by Dawson in the presence of four witnesses, all of whom were present at the same time and three of whom then signed the document in the presence of Dawson and each other. Plus, every signature was individually dated.

The court then determined that Dawson did make an alteration in the document regarding the surname of his elder daughter. The court found that the alteration met the legislation’s requirements under s. 54(4)(b), given that Dawson made the alteration at the same time he signed the document, in the presence of the witnesses and before they also signed the document.

On the second issue, the court ruled that the gifts to the parents were valid and effective under s. 43(4), considering that Dawson made the gifts with considered testamentary intent and meant for his parents to receive his estate despite them being signing witnesses. Dawson expressly stated that he was making the gifts to thank his parents for their support during his difficult times, a fact which was supported by the evidence revealing a close and loving family relationship, the court said.

The court noted that Dawson’s insurance and pension benefits made up most of his estate and that, five months after signing the document, he named his parents when changing his beneficiary designations, in accordance with the document’s provisions.

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