Affidavit of Execution

November 14, 2014
November 14, 2014 notarypublicedmonton_12z634

One of our most frequently asked questions for wills is  “am I required to have my document signed by a lawyer or notary to make it legal?”. Most recently by a Pharmacist named Min.  The answer is no. A WILL is made legal by signing it in the presence of two witnesses who cannot be beneficiaries named in the Will. There is no requirement in Alberta 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”. The witness must also swear that they know the person who signed the original document (the Will).

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.

Whether or not you decide to sign an Affidavit with your Will is a personal decision. At Notary Public Edmonton 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.

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