Who can Witness a Will?

Perceptions

It is arguably a matter of common knowledge among those who have never had one that a will is something that requires witnesses. The thinking goes: A will is a formal legal document, among the most formal that can be, and formal documents tend to require witnesses to their signing by their maker. That thinking is correct.

Importance

Moving beyond common knowledge, what does the law say exactly?

• How many witnesses does a will need?
• In what way are they supposed to witness?
• Who can serve as a witness? Can anyone serve as one?

There are many things for a prospective consumer of estate planning to know about the topic of wills.

As they move through the process of having a will made, they come to learn about these things as they are posed as matters to consider in deciding on the will's contents and as matters to know in properly completing and storing a will after it has been finalized.

These may range from "required to know" to simply "optional but good to know".

The matter of witnesses falls squarely into the former category.

If you do not follow the rules on who can witness your will and do it wrongly then it may end up invalidating your will and ruining your intended plan for your assets.

Sources

The law regarding wills in Canada is set at the provincial level, with each province having its own wills statute.

Province	Statute
Alberta	Wills and Succession Act, S.A. 2010, c. W-12.2
British Columbia	Wills, Estates and Succession Act, S.B.C. 2009, c. 13
Manitoba	The Wills Act, C.C.S.M. c. W150
New Brunswick	Wills Act, R.S.N.B. 1973, c. W-9
Newfoundland & Labrador	Wills Act, R.S.N.L. 1990, c. W-10
Northwest Territories	Wills Act, R.S.N.W.T. 1988, c. W-5
Nova Scotia	Wills Act, R.S.N.S. 1989, c. 505
Nunavut	Wills Act, R.S.N.W.T. 1988, c. W-5
Ontario	Succession Law Reform Act, R.S.O. 1990, c. S.26
Prince Edward Island	Probate Act, R.S.P.E.I. 1988, c. P-21
Saskatchewan	The Wills Act, 1996, S.S. 1996, c. W-14.1
Yukon	Wills Act, R.S.Y. 2002, c. 230

Rules

These statutes are broadly uniform with only very minor differences in strictness.

When it comes to the manner of proper "execution" - that is, proper signing and witnessing - these statutes provide, under their strictest common interpretation, that:

1. In order for a will to be valid:
   1. The will must be drafted in writing, signed at the end by the will-maker in the simultaneous presence of two (2) witnesses, and then signed by the said witnesses in the presence of the will-maker.
   2. The will-maker must not be under the age of majority or lacking mental capacity. They must be an adult and they must be mentally competent.
   3. A witness must not be under the age of majority or lacking mental capacity. They must be an adult and they must be mentally competent.
2. A witness should not be a beneficiary under the will or a spouse or partner of a beneficiary under the will. If they are then that beneficiary's gift is void.
3. In some provinces, a will that by mistake was improperly executed may be retroactively "cured" as proper, and a will that by mistake had a beneficiary or their spouse or partner as a witness and thus had their gift voided may have such gift retroactively "cured" as valid, but these corrections may only be achieved upon a lengthy, costly, uncertain application to Court.

Rationale

The rules as to signing and witnessing have straightforward purposes. The requirement of two capable witnesses to the signing serves to ensure that it did happen and was not a forgery. The requirement provides a baseline assurance; one remains free to challenge a signing where the witnessing was suspect. The age limitation on making a will coincides with general limitations on the competency of minors to deal with property. The requirement of mental capacity on the part of the will-maker reflects the need that the intent they express regarding their property be lucid, informed, and meaningful.

The rule that a witness should not be a beneficiary or a beneficiary's spouse or partner is a directed safeguard against the scenarios of malicious actors i) outright forging a person's signature on a will claimed to be signed in front of them that has them as beneficiaries or ii) otherwise coercing or unduly influencing a person into signing a will in front of them that has them as beneficiaries. The rule's consequence necessitates using as witnesses independent persons who have no personal stake or role in the will and thus no incentive to fabricate or force its signing, presumptively ensuring the signing's veracity and independence.

Exceptions

The list set out above covers the conventional or standard rules for a will.

While chosen not to be included in that list, the source law does contain a number of exceptions, alternatives, and additions.

• The rule that there be witnesses is relaxed in certain cases.
  • A will signed by a military member on active duty or a sailor at sea does not require witnesses to be valid. This is understandable for practical reasons which policy recognizes.
  • In select provinces, a will that is entirely in the will-maker's handwriting with no printed portions and that they sign does not require witnesses to be valid.
• The rule that a will-maker be an adult is relaxed for certain individuals in select provinces. A minor may be a valid will-maker where they are married, a military member, or a sailor at sea.
• The rule that a will-maker sign their will has an alternative. Instead of signing their will themselves as one normally would, a will-maker may nominate and direct another person to sign their will on their behalf and acknowledge it as such in front of the witnesses. An otherwise mentally capable and communicative will-maker might do such a "substitute signing" where they physically cannot grip a pen and sign for themselves due to disability or deficiency in the hands. In many provinces such a "substitute signer" is prohibited from also being a witness.

These exceptions are obscure. Your Final Will does not deal in them and provides the conventional or standard form of will - machine-printed, self-signed, doubly-witnessed - that suffices for all but an iota representing the lattermost point. Nevertheless, these are interesting tidbits of information to know.

Summary

Having examined broadly everything to do with the proper signing and witnessing of a will and setting aside obscure legal exceptions, an answer to the specific question asked at the beginning - "Who can be a witness to a will?" - emerges:

A witness to a will must not be a minor or lack capacity, otherwise the will is not valid. A witness to a will or the spouse or partner of a witness to a will should not be a beneficiary, otherwise their gift is void as against the witness, the spouse or partner, or anyone claiming under either of them.

Bottom Line

A will requires two (2) witnesses. They can be any two people so long as they fit the following criteria: they must be of the age of majority, they must be mentally capable, they must not be anybody who is included in the will, and they must not be the spouse or partner of anybody who is included in the will. Failure to follow this will result in your will being invalidated fully or partially.

Knowledge of this is therefore mandatory. These rules are featured in the instructions package you receive upon successful purchase of a wills product at Your Final Will. To see more from our instruction manuals click here.