First and foremost, it is important to note that in Ontario, there is no legal requirement for a Will to be witnessed by a Notary Public to be valid. With that said, a Notary Public or Commissioner for Taking Affidavits often play an important role in ensuring your Will can be probated and accepted by the court, when the time comes.
How do I properly execute (sign) a Will for use in Ontario?
Proper execution of your Last Will & Testament is an important in helping to ensure that your loved ones are protected and your wishes are carried out as per your final instructions.
For an Ontario Will to be valid it must contain the signature of the testator (person making the Will) and 2 separate witnesses. While not required, it is good practice to also initial every page of the Will along with your witnesses. There is 1 exception to the 2 witness rule and that is for "holograph Wills" these are wills that are hand written entirely in the testator's hand writing.
Who can be a witness? Your Witnesses should be over 18 years of age and NOT BE NAMED IN THE WILL (or the spouse of anyone named in the Will) and 1 of the witnesses can be a Notary Public (but does not have to be).
Do I need an Affidavit of Execution?
An Affidavit of Execution is a document that is signed by one of the witnesses to the execution of a Will in front of either a Notary Public or Commissioner for Taking Affidavits who will also endorse the original Will as “Exhibit A” to the Affidavit of Execution” (on the back of the signature page). Once an Affidavit of Execution has been signed by the Witness, it is a good practice to attach it to the back of the original Will.
While a relatively simple document, an Affidavit of Execution of a Will (or Codicil) can be almost (if not just as) important as the Will itself as it provides necessary testimony to the court that the Will being presented for probate, is the genuine original Last Will and Testament. Without an Affidavit of Execution, it may not be possible to probate a Will in Ontario.
At Aikman Notary Services, I attend quite a few Will signings and while I can’t provide legal advice or help to draft your Will, I can help ensure that your Will is properly executed, along with an Affidavit of Execution.
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