Can the spouse of the testator be a witness to the Will if the spouse is not benefitting from the Will?

Technically, any role can also take on another role in your Will (i.e. your beneficiary who is also your guardian, your trustee and your executor in your Will) with only ONE EXCEPTION for the witnesses to the Will:

• 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.

However, it is generally recommended to avoid having the spouse of the testator as a witness to a will in order to prevent any potential conflicts of interest or challenges to the validity of the will.

If the spouse is a beneficiary under the will, any gifts to them will be void under the Wills Act. However, even if the spouse is not a beneficiary, there could still be concerns about the spouse's impartiality as a witness, especially if there is a dispute over the validity of the will.

In addition, the surviving spouse may have certain rights under the Inheritance Act to claim reasonable provision from the deceased's estate. While this would not necessarily invalidate the will, it could lead to a legal challenge and further complications.

Ultimately, the decision of who to choose as witnesses to a will is up to the testator, but it is important to carefully consider all potential risks and consequences. It may be advisable to choose independent witnesses who have no personal interest in the will or its contents.