Affidavit of Execution for a Will
Any lawyer will tell you that you should have a will. They would have even before the current pandemic. Unfortunately, many people simply cannot make room in their limited budget to hire a professional to help them prepare one. So many write one themselves.
How do I prepare a Will?
We cannot possibly touch on all the potential pitfalls in preparing a will in a short article. There is an entire branch of law dedicated to Estates. However, we can touch on a common practical omission that should often accompany a will – an affidavit of execution. These may not even be mentioned in your will kit, never mind included. Basically, one or more witnesses swear that they saw you sign the will.
Why do I need an Affidavit of Execution?
Strictly speaking, an affidavit of execution is not normally required for a will to be valid. It is, however, important evidence of that fact that can make things easier for your executor when the time comes. For example, in Ontario, an affidavit of execution is used when Probating the will. If the affidavit is already there with the will, the executor can apply right away. Otherwise, they may have to track down witnesses from years before to sign the affidavit. They may have moved away, forgotten the signing, or even died themselves. Failing this the executor has to try to prove the will is valid in other ways, which simply adds burdens when she or he is likely also in mourning.
Where do I find one?
Whether or not an affidavit of execution is used in your jurisdiction, and any formatting or other practical requirements can usually be found on the Provincial or Territorial Government and/or Court website. Some have a downloadable form specifically for this purpose, or a description of formatting and what should be included (see the links below). You may also find examples from law firms, legal and paralegal associations, or legal publishers. Just try to be sure the sample is acceptable in your jurisdiction.
How does it get signed?
Depending on the jurisdiction, one or more of the witnesses that signed the will must swear the affidavit of execution before a commissioner of oaths or Notary. This is often done immediately after the will is executed if a commissioner or Notary is present. If not though the witness may swear the affidavit any time after they witnessed the signing. In Ontario, the original will is marked as an exhibit to the affidavit by the commissioner or Notary, so the witness should bring the will with her/him so this may be done.
If your witness needs to swear one of these, contact us and we can help.
Affidavits of Execution links:
Alberta
Manitoba
Newfoundland
New Brunswick
Nova Scotia
Ontario PDF
Ontario Word
PEI
Saskatchewan
In this message: BB = me the Husband; EE = my spouse, recently deceased;
KK = one of the witnesses, and WW = KK’s spouse, both surviving.
EE’s Will was signed by EE and witnessed by KK and WW in Calgary at
KK’s accounting office. EE deceased in Saskatchewan in May, 2023.
EE’s 1987 Will appointed me (BB) as executor and was signed by 2 witnesses (
(husband, KK and his wife WW).
However, they (KK and WW) won’t sign the Affidavit of Execution of the Will,
because they say they don’t remember that event or its details.
I (BB) remember the event and its details; KK and WW witnessed my (BB’s)
Will in the same meeting.
Nevertheless, the witnesses signed an ‘AFFIDAVIT OF THE WITNESS
SIGNATURE’ with a Lawyer, stating:
2. I (KK) verify that the witness signature of KK of Calgary address on the Will
corresponds closely to how I have signed documents over the years in Calgary.
3. I (KK) affirm that the address of the witness KK on the Will was my address at
December 15, 1987.
4. I also affirm that BB and I were acquainted in Calgary for several years,
including 1987; we were both accountants with separate practices in Calgary.
5. However, I do not recall the December 15, 1987 meeting with you (BB) and
your spouse (EE) for witnessing the Last Will and Testament of your spouse EE
The Affidavit of WW does not include Clause 4. The wills have a proper
‘SIGNED, PUBLISHED AND DECLARED by the said Testator’ jurat.
The documents are ready to go to Probate without the Affidavit of Execution of the
Will. Can the Registrar of Probate declare that EE died intestate or that I (BB)
cannot be the Executor?
Dear Bruce,
Thank you for your comment and for your interest in our website.
Unfortunately, we cannot provide you with legal advice or a legal opinion as Red Seal Notary Inc. is not a law firm. You should contact an Estates lawyer in the relevant jurisdiction(s) for advice on your particular situation.
I hope this is of some assistance.