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Monday, March 7, 2011

What happens if a beneficiary acts as a witness?

During my seminar on Saturday, the attendees and I had a great discussion about the logistics of wills. Whether wills lawyers like it or not, plenty of people out there are making their own wills, and they want to know how to do it without making mistakes. I frequently get questions about witnessing, and this seminar was no exception.

The general rule for witnessing is that a witness should not be anyone who benefits under the will either directly or indirectly.

A person who is named in the will as a beneficiary should not act as a witness. Neither should the beneficiary's spouse (married or common law) be a witness. If they do act as a witness, the will itself is still valid, but the gift that would have gone to the beneficiary is invalid. In other words, the beneficiary isn't going to get what the will says he or she will get.

This will make things more complicated. The gift that would otherwise have gone to the beneficiary will be divided up according to local intestacy rules.

If you are making a will at home and you don't have witnesses, try asking a neighbour to come in and be a witness. The neighbour doesn't have to read the document; they just have to know that you're making a will. And don't forget to get the affidavit of witness to will done right away, before you lose track of the witness.

2 comments:

  1. Can a witness be a son or daughter of the beneficiary?

    ReplyDelete
    Replies
    1. Theoretically, yes; it's not specifically prohibited. However, keep in mind that if the beneficiary dies and his/her share is supposed to go to his/her children, that won't happen if the child was a witness. I wouldn't use that person as a witness.

      Lynne

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