In Ontario, there are certain formalities that must be followed for a Will to be validly executed: (1) the testator (Will signer) must sign the Will in the presence of two witnesses (who should not be a beneficiary under the Will or the spouse of a beneficiary); and (2) both witnesses must be present at the same time and sign the Will in the testator’s “presence” as attesting witnesses. Recent changes to the law allow for signing and witnessing by audio-visual communication technology, so long as certain requirements are met.
When the individual ultimately passes away, should it be necessary to apply for probate, the estate trustee must prove that the signature on the Will is the signature of the deceased. This is usually done with a document called an Affidavit of Execution of Will, which is a sworn statement by one of the witnesses to the signing of the Will as to the proper execution of the Will.
What happens if the witnesses have died or cannot be located at the time the probate application is filed? The applicant can prove the proper execution of the Will by other means. The applicant would have to provide an affidavit stating the reasons why no Affidavit of Execution has been filed and, where the witnesses cannot be found (as opposed to both being deceased), the efforts made to locate the witnesses. In addition, the applicant must submit an affidavit as to the signature of the deceased, which should be made by a person receiving no benefit under the Will, such as a bank manager, accountant, former employer of the deceased, or another third party familiar with the deceased’s signature.
In my opinion, it should be standard practice for lawyers to sign the Affidavit of Execution immediately after the signing of the Will and to store the affidavit together with the original Will. I have probated many Wills where this was not done and the applicant had to spend a significant amount of time and money attempting to locate the witnesses, find adequate documentation to prove that a witness is deceased, track down the drafting lawyer (who may also be deceased) to confirm that there is no affidavit of execution on file, and then convince a third party to sign an affidavit confirming the deceased’s signature. Financial institutions are frequently in the best position to provide this affidavit, as they usually have a signature card or other internal document on file bearing the deceased’s signature, but these types of requests must go through their estates department, which can take many months for approval. I recently had a file where I had to physically attend at the deceased’s branch with the original Will.
Bottom line: Unless you want your estate trustee to go through hoops to prove the due execution of your Will, ask your estates lawyer to sign an Affidavit of Execution of Will and provide it to you together with your Will