Whenever you create a Will, you must ensure that you execute it in front of two witnesses for the Will to be valid. Additional requirements include:
- The two witnesses cannot be beneficiaries to the Will or spouses to the beneficiaries (to avoid conflict of interest);
- The two witnesses must be present at the same time when watching you sign the Will.
To prove that (b) happened, Courts will routinely require at least one witness to sign an affidavit in front of a commissioner (usually a lawyer). The easiest way to complete this, is for a qualified law firm to draft and witness your Will – one of the witnesses can then easily sign the affidavit at the same time as Will signing in front of a lawyer.
During Probate with a Will, it is very difficult if the witness did not sign the affidavit – especially if the witness can no longer be located or is unwilling to co-operate.
In one of our probate cases, we spent a very long time locating a witness to execute the affidavit – all the spent time and money could be avoided if the Will was properly drafted and witnessed in the first place. Nevertheless, we were able to complete probate for our clients, and they learned a valuable lesson for the future.
