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Tuesday, November 26, 2013

Uh oh, the lawyer let a beneficiary act as witness. Now what?

From time to time, a lawyer makes a mistake in a will. If the error is small, such as a typographical error, it's likely that no harm will be done. But some mistakes are more egregious than others. A reader sent me a note to ask about a will in which the lawyer appears to have had one of the beneficiaries act as a witness. This is a serious error, as the beneficiary is now unable to inherit under that will. The reader's note and my comments appear below:

"My Grandmother has passed away and now we have found out that her lawyer allowed my aunt (a named beneficiary of the will) to act as a witness. If it is known by all of the beneficiaries that the lawyer made a mistake by allowing a named beneficiary of the will act as a witness is there a way to allow my aunt to have what she should be inheriting?"

That's a pretty basic mistake. Any law student who has taken first year wills law should know not to do that. A lawyer who isn't thoroughly familiar with the rules of witnessing a will should not be preparing wills in the first place, in my opinion. 

You have a couple of options here, but before I get into them, I want to caution you to be absolutely sure of the facts surrounding the witnessing. Do you know for sure that the lawyer allowed your aunt to sign it, or are you assuming that because the will was drawn by a lawyer? Something that happens pretty often is that the lawyer sends out a will for a client to review, accompanied by a letter warning the client that it's just a draft that should NOT be signed, and the client signs it anyway. The witnessing is almost always a mess when that happens. In a case like that, it can hardly be said that the lawyer allowed it.

The will should have two witnesses. If one signature belongs to the lawyer and the other belongs to your aunt, then you can safely assume that the lawyer allowed this mistake to happen. Both witnesses have to sign in the same room at the same time, so it would be obvious that the lawyer knew your aunt was witnessing it.

When a beneficiary witnesses a will, the will itself is still valid, but the gift to that beneficiary is not valid. In other words, the other beneficiaries will receive what that witness would otherwise have received.  The witnessing beneficiary will get nothing. The reason the facts regarding the witnessing are so important is that your aunt probably has a claim against the lawyer for what appears to be negligence. Your aunt may be able to recover from the lawyer the amount she would otherwise have received under the will.

A claim like this involves a lawsuit. Your aunt would have to sue the lawyer and use the will as evidence of negligence. She would also have to establish the dollar amount in question. Lawsuits are no fun, and are expensive and time-consuming, but that is the route your aunt would have to take. She might be able to shorten the process by contacting the Law Society of the province in which the lawyer practices, to make a complaint that may open discussions and perhaps even lead to a settlement without having to sue.

However, there is another option available, given your statement that all beneficiaries agree that your aunt should be able to inherit. The beneficiaries can make an agreement among themselves to honour the distribution as set out in the will. Legally, they don't have to do this, of course, but it sounds as if they may be willing to do so.  

For the purposes of the court paperwork, your aunt would not be listed as a beneficiary. After the executor administers the estate, there are two ways to proceed. One is that the executor pays the beneficiaries according to the valid parts of the will, and each of the beneficiaries then turns around and sends a portion of their inheritance to your aunt. 

The other way is that the executor pays everyone as if the whole will is valid, including the aunt. It's essential that the executor has written, signed agreement from all of the beneficiaries before doing that. The instructions from the beneficiaries would have to be crystal clear in terms of dollar amount to be paid to your aunt and from whose share it is to be taken. It's great to see beneficiaries co-operating in this way to honour the wishes of the deceased.


  1. Is it the same if the witness in a will is the spouse of a beneficiary - i.e. that particular beneficiary will not be able to inherit under the law?

  2. Thank you for the information. Yes the lawyer is the other witness. The will was signed in my Grandmothers kitchen.
    I guess the next step is to have a lawyer draw up the agreements for the other beneficiaries to sign to allow my aunt to have her share.


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