Affidavits of Execution

Affidavits of Execution - Everything You Need to Know

What Is An Affidavit Of Execution?

An affidavit of execution is a form that is filled out by one of your two witnesses and states that they were with you when you signed your will and that they were in the presence of you (the will-maker) as well as the other witness, and they confirm these statements to be true. It essentially helps confirm the validity of your will. After completing the form, the witness who filled out the Affidavit needs to get the form notarized, and then it is stored with your will. 

If probate – the process of the courts formally accepting the will and appointing the executor – is required, the affidavit of execution is then provided to the courts after you pass away as part of an executor’s application for a grant of probate. 

Is An Affidavit Of Execution Required To Make My Will Legally Valid?

No. As long as you follow the instructions to create, sign, and witness your will correctly, you have a legally-valid will. An affidavit of execution is not part of the will itself and is a separate document that is only required by the courts if your will is required to go through probate.

Do I Need My Affidavit Of Execution Notarized?

Yes! Like all affidavits, an affidavit of execution needs to be notarized or commissioned for it to be completed. This can typically be done by a legal professional including:

• Lawyers
• Notary publics
• Commissioners

What Is A Commissioner Of Oaths Or Notary?

Commissioners of oaths and notaries can serve as an official witness to the signing of documents. Their role is to protect against fraud by verifying documents.

When it comes to an affidavit of execution, a commissioner of oaths or notary must be present to ‘commission’ or 'notarize' the sworn statement in the document. Notaries and commissioners are able to officially administer your oath or affirmation.

Provincial Requirements for Witnesses:

The affidavit is often sworn by one of the witnesses and may need to be signed by a second witness as well in certain provinces, but it’s not always mandatory in every case.

Here’s a quick rundown of how it works in a few provinces:

• Ontario: The affidavit of execution is often signed by one of the witnesses, and it’s not necessarily required to have a second signature. However, it is good practice to have it notarized if required.
• British Columbia: Similar to Ontario, one witness can swear the affidavit of execution, though the document will typically be filed by the person applying for probate.
• Quebec: Quebec has its own civil code, and the rules around wills and affidavits are a bit different. It’s common to see a notary involved in the execution of wills, and the affidavit of execution might not be as commonly required as in other provinces.
• Alberta: In Alberta, an affidavit of execution may be required to validate a will during probate, and typically, only one witness will sign the affidavit.

For exact details specific to each province, it’s important to check local laws or consult a lawyer who practices in the province where the will was made.

How to Fill an Affidavit Of Execution

To create an Affidavit of Execution, you’ll need to provide the following information.

• The name of the person who signed the original document
• The type of document the Affidavit of Execution is for (e.g., Power of Attorney, Will, Gift Deed, etc.)
• The names and addresses of all the witnesses
• The signing date
• Whether the Affidavit of Execution will be notarized by a commissioner or a notary public
• The city or town and province where the Affidavit of Execution will be signed