What's an Affidavit of Execution of Will  (Form 74.8)

Imagine you have written a Will (a legal document that explains how your belongings should be divided after you pass away). To ensure that it's properly executed, you may ask someone to witness the signing of the said Will.  This is where the affidavit of execution comes into play, which is a special type of legal document that the witness signs to confirm that they were present when you signed your Will (it serves as evidence to confirm the proper execution). The affidavit of execution provides crucial details about the execution process, including the names and addresses of the testator (the person making the will)

and the witnesses, the date and location of the signing, and the fact that all necessary legal formalities were followed. This document is important because it helps validate the Will proving that it meets legal requirements and was properly executed in accordance with applicable laws.  You then attach the original Will to the affidavit of execution as proof. 

In order to make the affidavit valid, it must be sworn or affirmed in front of a commissioner, notary public, paralegal or lawyer. Although not required by law, it's highly recommended to save your family from unforeseen circumstances in future arguments or legal complications.  It serves as a testament to the authenticity and proper execution of the testamentary document, providing a safeguard against potential disputes or challenges to its validity in the future.

In many jurisdictions, including Ontario, the affidavit of execution is often required during the probate process, where the court oversees the administration of the deceased person's estate. The court relies on the affidavit of execution to verify the proper execution of the will or codicil and to confirm the authority of the named executor to administer the estate.

Overall, the affidavit of execution of a will or codicil is a vital legal instrument that substantiates the due execution of testamentary documents, promoting clarity, certainty, and the adherence to legal formalities in the distribution of a person's assets and fulfillment of their final wishes.

A bit about Probate

If your Will needs to go through a legal process called probate after your passing, the court may require an affidavit of execution. Probate is a step to ensure that your Will is valid and appoints an executor to handle your estate. Even if your situation is straightforward and no one contests your Will, it's still a good

idea to be prepared for probate to protect yourself and your family.

The process can take several weeks, but having an affidavit of execution can make it shorter and less complicated. Without the affidavit, a judge may need to find the witnesses who saw you sign the Will, which can be difficult if the witnesses are no longer alive. So, the affidavit of execution makes things easier for everyone involved.

Final Thoughts

A final piece of advice regarding affidavits of execution that requires careful consideration. It's imperative to handle these documents with the utmost care and refrain from any alterations or disassembly. Let's take a moment to illustrate this with an example: If you have affixed the witness's affidavit of execution to your Will using staples, it's vital to refrain from removing and reattaching them at a later time. This precautionary measure is crucial to avoid any suspicions of tampering that may arise, particularly in the eyes of a judge. Consequently, many individuals choose to complete their affidavit of execution once they are confident that no further modifications to their Will is necessary. While this precaution may initially appear to be an inconvenience, it's essential to recognize the profound significance of an affidavit of execution as a critical safety net. By adhering to these principles and preserving the integrity of your documents, you establish a sturdy foundation that can potentially spare your loved ones from undue complexities and emotional distress in the future. Embracing these practices ensures the smooth and reliable administration of your estate.

Completing the Affidavit of Execution

Here is a step-by-step process explaining what your witness can expect when completing (executing) an affidavit of execution, which needs to be commissioned by an authorized official to be valid:

1.    Find an authorized official: The first step is to get your affidavit of execution commissioned. We can help you perform this role.   Call us to schedule your appointment.

2.  Attend the appointment: On the scheduled date and time, your witness should arrive at the designated location discussed whether it be online, our office or any other convenient location for you in Richmond Hill. The notary will ask the witness to present a government-issued photo identification. Acceptable forms of identification include a driver's license, passport, or permanent residency card.

3.    Confirm the information: We (notary public) will ask your witness to confirm the information in the affidavit of execution. This includes verifying their personal details, such as their name and address, to ensure accuracy.

4.    Swear or affirm the truth: Your witness will be required to swear an oath or affirm that the information provided in the affidavit is true. This step confirms the authenticity and validity of the document.

5.    Sign the affidavit: Once the witness has sworn or affirmed the truthfulness of the information, they will sign the affidavit of execution in the presence of our authorized official. The notary may also sign the document at this time.

6.    Stamp or seal the document: The notary will then stamp or seal the affidavit of execution with their official stamp or seal. This adds further authentication to the document and indicates that it has been properly commissioned.

7.    Attach supporting documents: If required, the notary will attach the original Will or any other supporting documents to the affidavit. These documents serve as evidence and are marked accordingly to indicate their attachment.

8.    Provide a copy: The authorized official may provide a copy of the completed and commissioned affidavit of execution to your witness. It's important to keep this copy for personal records and safekeeping.

9.    Store the affidavit securely: The original affidavit of execution, along with the attached documents, should be stored in a secure location.

A final reminder that it's crucial to keep these documents in a place that is easily accessible to your executor or loved ones when needed.

Tell me more about Probate

In the event of someone's passing and their ownership of assets , such as, vehicles or property, the legal procedure known as probate is typically necessary.  The primary objectives of probate, when a Will exists, are twofold:

1. Validation of the Will: The court scrutinizes the Will to verify its compliance with legal requirements and its enforceability.
   
   
2. Confirmation of Executor's Authority: The court affirms that the individual designated as the executor in the Will possesses the legal authority to administer the deceased person's estate.

In cases where the deceased individual did not create a Will, a family member or an interested party must apply for a Certificate of Appointment to assume the role of executor. Moreover, there are additional circumstances that may necessitate applying for probate, including:

• The presence of a Will without an explicitly named executor.
• The requirement of a financial institution, such as a bank, to obtain evidence of a beneficiary's authority to receive the deceased person's assets.
• Disputes arising regarding the appropriate executor.
• Uncertainty regarding the validity of the Will.
• The designation of beneficiaries who are incapable of providing legal consent.

Even when probate is not obligatory, an executor may choose to pursue it in certain instances. This can afford the executor added legal protection in case of Will contests or enable them to address any legal disputes relating to the estate. Additionally, it allows for the establishment of a specified timeframe within which potential claimants must come forward to assert their portion of the estate.

As mentioned previously, it can be a time-intensive process, typically lasting between 12 and 14 weeks. However, the presence of an affidavit of execution significantly streamlines the process. Without such an affidavit, a judge would be required to locate and verify the witnesses who were present during the Will-signing.
This becomes considerably more intricate and time-consuming if the witnesses are no longer alive.

All in all, probate acts as a legal safeguard, irrespective of whether a Will exists, ensuring the proper administration of a deceased person's estate.

2022 Ontario Probate Form Changes

Effective from January 1, 2022, the implementation of new estate forms has become mandatory for probate applications in Ontario. This requirement stems from O. Reg. 709/21, which was filed in October 2021. The purpose of this regulation is to bring the Ontario estate court forms in line with the amendments made to the Succession Law Reform Act (SLRA) through the Accelerating Access to Justice Act, Schedule 9. The said Act received Royal Assent in April 2021.

Significantly, these amendments introduced several important changes. Firstly, they allowed for the utilization of audio-visual communication technology for executing documents. Secondly, the provision that automatically revoked a will upon marriage was repealed. Lastly, the Bill also abolished property rights on death for separated spouses. By implementing these changes, the probate process governed by Rule 74 has been streamlined. This involved consolidating a total of 43 forms into 8, along with

introducing administrative modifications to 15 court forms. As a result, the overall procedure has been made more efficient and less cumbersome.

Form 74B Affidavit of Service replaces: 

• Form 74.6 Affidavit of Service of Notice (Certificate of Appointment of Estate Trustee with a Will) 
  
  
• Form 74.16 Affidavit of Service of Notice (Certificate of Appointment of Estate Trustee without a Will)
  

Some common errors in the preparation of an affidavit of execution

To avoid delays in the processing of the certificate of appointment of estate trustee with a will, it's crucial to avoid common errors in the preparation of the affidavit of execution. Some of these errors include:

1. Obtaining the affidavit of execution after the testator's death, necessitating additional time and effort to locate one of the witnesses.
   
   
2. Failing to properly designate the original will or codicil as an exhibit to the affidavit of execution.

• The original will should be marked as exhibit A within the affidavit of execution.
• Furthermore, it should be marked (on the back of the document) as exhibit A within the applicant's affidavit.

    3. Ensuring that neither exhibit stamp overlaps with the section of the       
        page containing the signatures of the testator and witnesses on the
        other side.

By adhering to these guidelines and avoiding these common errors, the efficiency and accuracy of the probate process can be enhanced, allowing for smoother proceedings in obtaining the certificate of appointment of estate trustee with a will.