Affidavit of Execution of Will in Ontario: Steps and Process

When dealing with a will in Ontario, an affidavit of execution is a crucial legal document.

This sworn statement by a witness confirms that the will was properly signed and witnessed according to the law. This document is necessary when applying for probate because it helps prove the will’s validity.

Understanding this process can be confusing.

A witness who saw the testator sign the will must swear the affidavit, usually at the same time or soon after the will’s signing.

If no affidavit exists, you may need extra steps to confirm the will’s authenticity.

Knowing how to handle an affidavit of execution can save time and avoid legal challenges.

In this article, we explain what it is, why it matters, and what to do if you don’t have one.

What Is an Affidavit of Execution of Will in Ontario?

An affidavit of execution of will is a formal document that verifies a will was signed correctly and witnessed according to Ontario law.

This affidavit is crucial for validating a will during the probate process.

It involves specific legal steps and requirements to ensure the court accepts the will.

Purpose and Legal Definition

The affidavit of execution of will is a sworn statement made by a witness who saw the will being signed.

It confirms the testator (the person making the will) signed the will in the presence of witnesses, who also signed the document.

This affidavit serves as proof that the will was executed properly.

In Ontario, this document is required when applying for probate.

The affidavit assures the court that the will is genuine and meets all legal formalities.

Without it, proving the validity of the will becomes more complicated, which can delay or block the estate process.

Key Legal Requirements

For the affidavit to be valid, a commissioner of oaths, such as a lawyer or notary public, must witness it being sworn or affirmed.

The affidavit includes the date of signing, names and addresses of the witnesses, and confirmation that the testator read and understood the will.

Both witnesses must be present when the will is signed, or one can participate by video conference if allowed by regulation.

Beneficiaries or their spouses should not act as witnesses to avoid conflicts of interest.

The affidavit follows a specific format, such as Ontario’s Form 74D, which must be completed accurately and submitted to the court along with the original will during the probate application.

Who Must Sign the Affidavit of Execution

Certain people must sign the affidavit of execution for it to be valid.

These include the witnesses who saw the will being signed and a legal authority who can officially confirm the document.

Each signer has a specific role to ensure the affidavit is legally acceptable.

Eligible Witnesses Explained

A witness who was present when the will-maker signed their will must sign the affidavit.

Typically, one witness signs the affidavit in Ontario, although having two witnesses can add security.

The witness confirms they saw the will-maker sign the will and that the will-maker appeared to be of sound mind and not under pressure.

This sworn statement helps prove the will is authentic when the executor applies for probate.

The witness should not be a beneficiary in the will to avoid conflicts of interest.

Choose a witness who can easily be reached after the will-maker’s death to sign the affidavit promptly.

Role of the Commissioner of Oaths or Lawyer

A commissioner of oaths, notary public, lawyer, or paralegal must be present to notarize or commission the affidavit of execution.

Their job is to verify the identity of the witness and confirm that the affidavit is signed truthfully and voluntarily.

In Ontario, all lawyers and paralegals automatically have commissioner of oaths status, so they can perform this function.

This official signing adds legal weight to the affidavit.

Without this commissioning step, the courts will not accept the affidavit during probate.

Notarization or commissioning is essential to complete the affidavit properly.

Looking for a will in Ontario? Discover the steps to request and obtain a copy legally. 

How to Complete and File the Affidavit of Execution

Completing and filing an affidavit of execution requires precise steps to meet Ontario's legal standards.

Prepare the affidavit right after the will is signed, attach the original will properly, and follow the correct filing procedures to avoid probate delays.

When and How to Prepare the Affidavit

Prepare the affidavit of execution after the testator signs the will and witnesses observe the signing.

Usually, a witness who observed the execution completes it.

The affidavit confirms the will was signed properly and in the presence of valid witnesses.

Include the full names and addresses of the testator and witnesses.

State details like the date the will was signed and whether witnessing was in person or by video conference.

The affidavit must be sworn or affirmed before a commissioner, notary, or lawyer.

Witnesses who are beneficiaries or their spouses should not prepare the affidavit to avoid conflicts.

Preparing the affidavit quickly helps speed up probate when the will is filed with the court.

Attaching the Will as an Exhibit

Attach the original signed will to the affidavit as an exhibit and refer to it as Exhibit “A.”

This links the affidavit directly to the will it confirms.

The lawyer or commissioner completing the affidavit usually marks the will’s signature page as Exhibit “A.”

This legal marking prevents confusion about which will the affidavit covers.

Attaching the will as an exhibit ensures the court can verify the document being proven is the actual signed version.

Without attaching the will, the affidavit alone is not enough for probate.

Filing Procedures and Options

Once the affidavit of execution is complete, file it with the court alongside the will when applying for probate in Ontario.

This is done at the Superior Court of Justice.

Filing can occur in person or by mail at the local estate office.

Some areas allow electronic filing, depending on specific court rules.

A filing fee may apply, based on the will’s value.

Keep the original affidavit and will safe until submitting them.

The court uses the affidavit to confirm the will’s validity and to issue the certificate of appointment to the estate trustee.

Proper filing avoids delays in estate administration.

Affidavit of Execution and the Probate Process

The affidavit of execution proves the will is valid before the court grants authority to manage the estate.

This proof helps the estate trustee act legally and clarifies responsibilities and powers.

Requirement for Certificate of Appointment of Estate Trustee

An affidavit of execution is a key document when applying for a Certificate of Appointment of Estate Trustee in Ontario.

It confirms the will was properly signed and witnessed, showing the deceased intended it to be their final will.

Without this affidavit, the court may delay or refuse the certificate.

The affidavit must be signed before a commissioner for taking affidavits, who will also sign it.

This formal proof allows the court to grant legal authority to the estate trustee named in the will.

If the will was altered or handwritten (a holograph will), different forms of affidavits may be needed.

Submitting the affidavit with your probate application helps avoid delays or challenges about the will’s authenticity.

Implications for the Estate Trustee

Once the affidavit is accepted and the Certificate of Appointment of Estate Trustee is issued, the estate trustee gains full legal authority to manage and distribute the estate assets.

This authority includes paying debts, selling property, and transferring assets to beneficiaries.

Without the certificate, financial institutions and government bodies may refuse to release funds or property, causing delays.

The affidavit of execution supports the trustee’s role by confirming they are acting under court approval.

Preparing and submitting an accurate affidavit shows we understand our legal duties.

It protects the estate from disputes over the will’s validity and ensures the trustee can carry out their responsibilities without interruption.

Special Considerations for Holograph Wills

Holograph wills have unique requirements compared to typed wills, especially when proving their validity.

We need extra steps to secure proof of the testator’s signature and intent to ensure the court accepts the will.

Unique Procedures for Holograph Wills

Holograph wills are handwritten by the testator and usually have no witnesses.

This creates a challenge when submitting an affidavit of execution in Ontario because such affidavits normally come from witnesses attesting to the signing.

For holograph wills, someone who knew the testator well must swear an affidavit.

This person should be familiar with the testator’s handwriting and signature.

They confirm these details based on their personal knowledge to help prove the will’s authenticity.

The goal is to establish that the signature is genuine and that the document reflects the testator's intentions.

Alternatives When No Affidavit Exists

Sometimes, no affidavit of execution exists, and witnesses cannot be found.

This is common with holograph wills.

In these cases, we look for other ways to prove the will’s validity.

We might rely on affidavits from people like employers or bank officials who have known samples of the testator’s signature.

They compare these with the signature on the will to help convince the court that the signature is authentic.

If these methods fail, consult an estate lawyer who can guide you through additional legal procedures to get the will probated.

Amendments, Forms, and Legal Updates

We need to understand the specific court forms required for the affidavit of execution of will in Ontario and the recent changes to estate court rules that affect how these documents are handled.

These updates simplify the probate process and ensure compliance with the latest legal requirements.

Required Court Forms in Ontario

In Ontario, the Affidavit of Execution of Will is generally completed using Form 74-8 under the Courts of Justice Act.

This form confirms that the will was properly signed and witnessed.

The affidavit must include the original will or codicil as an exhibit, marked by the lawyer or notary who commissions the affidavit.

We should note the use of other related forms that support probate applications, including Forms 74A, 74.1A, and 74J.

These forms often accompany the affidavit to verify service, consent, and other necessary details.

Many of these are fillable PDFs designed to help us complete them correctly without confusion.

Courts now require the affidavit and will to follow updated formatting, including clearer instructions and larger fonts.

This helps reduce errors when submitting our probate applications.

Recent Changes to Estate Court Rules

Significant amendments took effect on April 1, 2024, aiming to simplify probate under Rule 74 of the Rules of Civil Procedure.

Form 74F (Affidavit Regarding a Holograph Will) was amended, and a new Form 74G for Renunciation and Consent replaced earlier versions from 2021.

These changes clarify that the original will or codicil must be attached as an exhibit to the affidavit of execution.

This amendment ensures proper evidence of the will’s signing and reduces delays in probate processing.

Other updates focus on improving how estates handle administration tax and bonds, now embedded in related probate forms.

These changes align with recent legislation and make it easier for us to navigate the filing process confidently.

We must use the new forms dated November 1, 2023, for any applications filed after April 1, 2024, to comply with these updated rules.

Conclusion

An affidavit of execution plays a key role in confirming the validity of a will in Ontario. It helps prove the testator signed the will in front of witnesses, making the probate process smoother for executors. 

While not always legally required, it is highly recommended to avoid delays. If you face challenges locating witnesses or need help preparing the affidavit, we can guide you through the process. 

Ensuring this document is done correctly saves time and reduces complications when managing an estate.

Ready to ensure your estate matters are handled properly? Contact B.I.G. Probate Law Ontario today for clear advice and professional support on affidavits of execution and other probate matters. 

Our experienced team is committed to helping you navigate Ontario's probate rules with confidence and ease. Reach us at Info@probatelaw-ontario.ca, call (289) 301-3338, or visit our website at probatelawgroup.ca to get started.

Frequently Asked Questions

We focus on what an affidavit of execution does, who can witness a will, and specific rules across provinces.

We also explain how to draft the affidavit and identify the people involved in its signing and witnessing.

What is an affidavit used for in Ontario?

An affidavit in Ontario serves as a sworn statement confirming that a will was signed properly.

It provides proof that the testator signed the will in the presence of witnesses.

This affidavit is often used during probate to verify the will’s validity and confirm the testator’s intentions.

Who can witness a will in Ontario?

Witnesses must be at least 18 years old. They cannot be beneficiaries or spouses of beneficiaries in the will.

This rule helps avoid conflicts or challenges later. Usually, two witnesses sign the will with the testator to confirm proper execution.

Is an affidavit of execution required in Alberta?

An affidavit of execution is not required to make a will legal in Alberta. However, it can serve as evidence that the will was properly signed.

It can also help speed up probate if witnesses cannot be found later.

How to draft an affidavit in Ontario?

The affidavit must state the date and place the will was signed. It should include the names of the testator and witnesses, and confirm that the will was read to the testator.

A commissioner for taking affidavits must witness the affidavit, either in person or by video conference under current regulations.

What do we call the person who is executing an affidavit?

The person making the sworn statement is called the “deponent.” They swear or affirm that the information in the affidavit is true.

For a will, the deponent is usually one of the witnesses who saw the testator sign the will.

Who will execute the affidavit?

A witness to the will’s signing executes the affidavit. The witness swears the affidavit before a commissioner or notary.

Sometimes, both witnesses sign separate affidavits. This strengthens the evidence of proper execution.