Can the spouse of the testator act as a witness to the Will if he/she is not a beneficiary?

Technically, the only restrictions are that for witnesses:

• Witnesses MUST be at least 21 years old.
• Witnesses MUST NOT be beneficiaries nor the spouses of beneficiaries. The term "beneficiaries" includes all beneficiaries, trust beneficiaries, remainder beneficiaries, and any substitutes for these beneficiaries in the Will.

Having a spouse act as a witness to a Will is not expressly prohibited under the Wills Act. However, it is generally advisable to avoid appointing a spouse as a witness in order to prevent any potential conflict of interest or challenge to the validity of the Will.

If the spouse is named as a beneficiary under the Will, any gifts to him or her will be rendered void under the Wills Act. Even if the spouse is not a beneficiary, questions may still arise regarding his or her impartiality as a witness, particularly if the Will is later disputed.

Furthermore, the surviving spouse may have certain rights under the Inheritance (Family Provision) Act to claim reasonable financial provision from the estate. While such a claim would not automatically invalidate the Will, it could result in legal proceedings and further complications.

Ultimately, the choice of witnesses rests with the testator. Nevertheless, it is prudent to select independent witnesses who have no personal interest in the Will or its contents, to minimise any risk of dispute or perceived bias.