In Ontario, probate is the legal process that validates a deceased person’s will, allowing the executor to manage and distribute the estate. Typically, one of the documents required for probate is the Affidavit of Execution of Will. In this post, I will explain what an Affidavit of Execution of Will is, and the steps you should take if there is no Affidavit of Execution of Will in Ontario.
What is an Affidavit of Execution of Will?
It is a document that confirms that the will was signed in the presence of two witnesses.
“Is an Affidavit of Execution required in Ontario?”
The answer is yes.
What is required for an Affidavit of Execution of Will?
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 the above two conditions happened, Courts routinely require at least one witness to sign an affidavit before a commissioner (usually a lawyer). The easiest way to complete this is to have a qualified law firm draft and witness your Will. One of the witnesses can then easily sign the affidavit while the will is being signed in front of a lawyer.
What to do if no Affidavit of Execution of Will in Ontario?
- If no Affidavit of Execution of will is available, an alternative is to provide an affidavit from someone familiar with the testator who can verify their signature.
- For a typewritten will, another option is an affidavit from someone who can compare the testator’s signature to one on file, such as a bank official or employer.
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 cooperate.
In one of our probate cases, we spent a very long time locating a witness to obtain the Affidavit of Execution of Will. All the time and money spent could have been avoided if the Will had been properly drafted and witnessed in the first place.
Nevertheless, we successfully completed the probate process for our clients, and they learned a valuable lesson for the future. I hope you will find this post helpful when you or your family member needs to prepare a will.
If you’re trying to apply for probate in Ontario and just notice there is no Affidavit of Execution of Will, you’re not alone. Many executors face this unexpected roadblock. But don’t worry, missing an affidavit doesn’t necessarily mean the will is invalid. At Varity Law, we specialize in resolving probate complications quickly and professionally. Whether you’re a family member, executor, or beneficiary, we can help you move forward with confidence.
Book your 1st free consultation with our trusted wills and estate planning lawyers. Let us guide you through your next steps. https://calendly.com/sabrina-668/1stfreeconsult
