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.
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.
Strictly speaking, an affidavit of execution is not normally required for a will to be valid. It is, however, important evidence to 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.
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.
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.