The sworn Affidavit of Execution

One of our most frequently asked questions for LegalWills is “am I required to have my document signed by a lawyer or notary to make it legal?”. We’ve addressed this in previous blog entries and explained that a document is made legal by signing it in the presence of two witnesses who cannot be beneficiaries within the Will. There is no requirement in any jurisdiction that we cover, to have a lawyer or notary sign a Will to make it legal. But I think it’s worth expanding a little on the “Affidavit of Execution” that sometimes accompanies a Will.

An “Affidavit of Execution” is a legal document that can be appended to a Will that attests that the signing procedure was correctly followed. The document itself is very simple; it simply states that the person signing the Affidavit was a witness to the signing of the other document (in this case the Will) and that they and any other witnesses were all present in a room together during the signing. It is usually a couple of paragraphs long. But, the Affidavit must be signed under oath, which means that it must be signed in the presence of a person with “notarizing authority”. They will usually say to the witness something along the lines of “do you swear under oath (or “in the presence of God”) that you witnessed the signing” and the witness should reply “I swear” and then sign the affidavit in the presence of the other witness and the notary. The witness must also swear that they know the person who signed the original document (the Will). It’s all a little Medieval, but the Affidavit then becomes legally binding. This is because as we know, you have to tell the truth if you say something under oath! (note that the Will was already legally binding before the Affidavit signing process).

You may wonder who the “oath takers” are; Public Notaries, Commissioners of Oaths etc. Well, it’s all a matter of applying. For example, in Ontario, you can pay $110 and apply to the Attorney General to become a commissioner for taking Affidavits (lawyers in good standing automatically have the power to take oaths) . You have to be 18 years of age and have a job that requires it – there are no courses or training. In other jurisdictions however, things are a little different. In New York for example you have to sit the New York notary public examination (the process is similar in California). British Columbia appears to be at the other end of the spectrum; the BC notaries website describes a program of 2 years in duration with an outlay of $20,000 for tuition fees, books etc. – the application alone costs $900. But it seems that their bailiwick is greater in BC with Notaries legally allowed to prepare Wills which presumably includes giving legal advice – something that they cannot do in Ontario (I would be very happy for anybody to provide clarification on this in the comments!).

The confusing application process and inconsistent powers of Notaries aside; what does the Affidavit of Execution actually do? It all comes down to the probate process; if after you die there is some doubt over how the document was signed; particularly if there is a challenge to the Will, then the probate court will ask the witnesses to the signing to testify under oath; that the signing process was followed correctly, that you were not under external influences, you knew what you were doing and that you understood the contents of your Will. By signing an Affidavit at the time the Will is signed, this procedure is preempted as the swearing under oath is done at the time of writing rather than the time of probating the Will. That is why in some US states they call this a “self-proving” Will (but just to make things more complicated some US States e.g. California, regard any Will as self-proving as soon as it is signed – the whole Affidavit overlay is considered redundant and can actually invalidate a Will).

Whether or not you decide to sign an Affidavit with your Will is a personal decision. At LegalWills we try to explain what it is, but we cannot give legal advice and so leave the decision up to the person creating the Will. In Canada companies like Red Seal Notary provide cost-effective affidavit signing services. Whatever you do, don’t pay a legal forms site to download an Affidavit for $10. Anybody who takes an oath can provide the form, and at LegalWills.ca we have them available free of charge.

I’m not sure that this post provides any clarification; it seems more confusing to me now than it did when I started writing!

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