Vancouver Litigation Lawyers Explain the Intricacies of Gifts to a Witness
VANCOUVER, BC–(Marketwired – November 30, 2017) – Vancouver litigation lawyers explain how gifts to a witness may be salvageable under section 43 of WESA
As a team of litigation lawyers in Vancouver, the professionals at Kushner Law Group understand that litigation law can seem complicated and vast. For example, when a testator is making a will, it is a common rule in many jurisdictions, including British Columbia, that the will must be witnessed by two people who are not to be beneficiaries.
Under the previous Wills Act, gifts made to witnesses or the spouses were considered to be void. However, under the Wills Estates and Succession Act (“WESA”), a court may make a declaration under Section 43 that a gift to a witness remains valid. For more, go to: http://kushnerlaw.ca/making-a-will-gifts-witness-wiped-salvageable-part-1/
In part one of a two-part blog series, the article explains how the situation was managed in the decision of Madame Justice Adair in Re Estate of Le Gallais, 2017 BCSC 1699.
In this decision, the testator passed away, leaving a substantial estate that was to be split equally amongst 6 charities. The will appointed the solicitor who drafted the document as executor and provided a clause for which the executor could charge for her work.
The executor was also a witness to the will. The executor brought an application before the Court for a determination that the charging clause was valid. S. 43 of WESA provides the following:
- 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
(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
In the facts before the Court on this case, three charitable beneficiaries consented to the relief sought and three were opposed. Part two of this blog will review the decision of Madam Justice Adair, so check back soon.
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For additional information, please visit http://kushnerlaw.ca/ or call 604-629-0432.
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