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, which confirms that the will was signed in the presence of two witnesses. In this post, I will share with you what you need to do in case there is no affidavit of execution of will in Ontario.
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 (2) 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 for a qualified law firm to draft and witness your Will. One of the witnesses can then easily sign the affidavit while signing the will in front of a lawyer.
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 spent time and money could have been avoided if the Will had been properly drafted and witnessed in the first place. Nevertheless, we completed probate 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 need to prepare a will. If you have any questions about estate planning and wills, feel free to book a 1st free consultation with us here: https://calendly.com/sabrina-668/1stfreeconsult
