In British Columbia, if you make a gift to one of the two witnesses to your will, or to the spouse of one of the two witnesses to your will, the usual rule is that the gift is invalid. This rule can lead to very harsh results, invalidating significant gifts to close family or friends, thwarting the will maker’s intentions.

Fortunately, the Wills, Estates and Succession Act contains a new provision allowing the court to declare that a gift to a witness, or to the spousal witness, is valid and may take effect, if the court is satisfied that the will maker intended to make the gift.

The relevant provision is section 43 of the Wills, Estates and Succession Act, which says:

Gifts to witnesses

43 (1) Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to

(a) a witness to the will-maker’s signature or to the spouse of that witness,

(b) a person signing the will by the will-maker’s direction, or the spouse of the person signing, or

(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).

(2) For the purposes of subsection (1), the relevant time for determining whether one person is the spouse of another is the time when the will was made.

(3) If a gift is void under subsection (1), the remainder of the will is not affected.

(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.

(5) Extrinsic evidence is admissible for the purposes of establishing the will-maker’s intention under subsection (4).

The first reported case of which I’m aware applying section 43 (4) was published in April, 2017. The case is Bach Estate, 2017 BCSC 548.

The evening before he died, Terry Bach signed a paper leaving his estate to his sister Sharon Thibodeau. The document was witnessed by two witnesses, one of whom was Ms. Thibodeau’ s husband. Mr. Bach had earlier seen a notary public to make a new will, but his physician advised him that he needed to go to the hospital because of his deteriorating health, and he was unable to complete his new will with the notary public. Accordingly, he signed the handwritten document expressing his wish to leave his estate to Ms. Thibodeau.

If Mr. Bach had died before the Wills, Estates and Succession Act came into effect, his intended gift of his estate to Ms. Thibodeau would have failed. One of the issues before Mr. Justice Kelleher in this case was whether the gift should be given effect despite the fact that Ms. Thibodeau’s husband the will.

In applying section 43 (4), Mr. Justice Kelleher applied the analysis the courts have used in deciding whether to give effect to a document that does not comply with the formalities of a will pursuant to section 58 of the Wills, Estates and Succession Act. In applying section 58, the court considers whether the non-compliant document records a deliberate or fixed and final expression of the person’s testamentary intentions.

The issue under section 43 (4) is whether the gift to Ms. Thibodeau expressed Mr. Bach’s testamentary intentions despite being witnessed by her husband. On the evidence, Mr. Justice Kelleher was satisfied that it did. Mr. Bach had previously told both a friend, and another of his sisters, that he intended to leave his estate to Ms. Thibodeau. Mr. Bach’s position was the other witness to the will. She gave evidence that the will was read aloud to Mr. Bach, and he said he agreed with the contents of it. It’s

In the result, Mr. Bach’s estate will go to Ms. Thibodeau