Affidavit of Execution: Sworn at the Signing, or Years Later

An Ontario will does not become valid because a notary stamped it. It becomes valid because it was signed in front of two witnesses in the way the Succession Law Reform Act describes. What the court asks for later, when an estate trustee applies for a certificate of appointment — the document usually called probate — is sworn proof that the signing happened that way. That proof is the affidavit of execution, and it can only come from someone who was in the room.

What the affidavit of execution is

Rule 74.04 (1) of the Rules of Civil Procedure lists what is filed with an application for a certificate of appointment of estate trustee. Where there is a will, the original will and any codicils are attached and marked as an exhibit to one of three documents, depending on the will:

• for a will that is not in holograph form, an affidavit of execution (Form 74D) of the will or codicil;
• where the will contains an alteration, erasure, obliteration or interlineation that has not been attested, an affidavit as to the condition of the will at the time of execution (Form 74E);
• for a holograph will, an affidavit attesting that the handwriting and signature are those of the deceased (Form 74F).

Rule 74.1.03 repeats the same list for a small estate certificate, so the requirement does not disappear because an estate is modest.

The rule does not say when the affidavit of execution has to be sworn. It only has to exist when the application is filed. That leaves two possible moments: the day the will is signed, while both witnesses are present, or the day someone needs it, which may be decades later.

What the affidavit has to describe

The affidavit is evidence that the formal requirements were met, so it is worth knowing what those requirements are. Section 4 (2) of the Act says a will is not valid unless:

1. at its end it is signed by the testator, or by some other person in the testator's presence and by the testator's direction;
2. the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
3. two or more of the attesting witnesses subscribe the will in the presence of the testator.

Section 4 (6) adds that where witnesses are required, no form of attestation is necessary. An attestation clause printed above the witness signatures is common, but the Act does not demand one. The witnesses' own account of what happened is what fills that gap later, and the affidavit is where that account is sworn.

What the rules do when no witness can be found

The same rule that asks for Form 74D also covers the case where it cannot be produced. If each of the witnesses to the will or codicil has died or cannot be found, the application is accompanied by "such other evidence of due execution as the court may require".

That wording matters. It is no longer a form with a known layout; it is whatever the court decides it needs to see. The will itself does not become invalid because its witnesses are gone. Section 11 of the Act says that where a witness becomes incompetent to prove the execution of a will after it was signed, the will is not on that account invalid. The difficulty is proof, not validity, and proof becomes harder with every year a witness moves or dies.

Since January 1, 2022, section 21.1 has also given the Superior Court of Justice power to order that a document that was not properly executed is as valid as if it had been, where the court is satisfied the document sets out the deceased's testamentary intentions. It applies where the deceased died on or after that date. That is a court application, decided on evidence, and it exists for wills that did not meet section 4. An affidavit of execution exists for wills that did.

Who can witness, and why that affects the affidavit

Since the affidavit comes from a witness, the rules about witnesses decide who can later swear it. The Act does not bar a beneficiary from acting as a witness, but it attaches a consequence. Under section 12 (1), where a will is attested by a person who receives a gift under it, or whose then spouse does, the gift is void as far as it concerns that person, the spouse, or anyone claiming under them. The will itself stands, and the witness remains a competent witness to prove its execution.

Two exceptions sit in the same section:

• under section 12 (4), the gift is not void where the will is attested by at least two other people who are not within that rule;
• under section 12 (3), the gift is not void where the Superior Court of Justice is satisfied that neither the witness nor the spouse exercised improper or undue influence on the testator.

Section 14 confirms that a person is not incompetent as a witness to prove the execution of a will solely because that person is an executor, and section 13 does the same for a creditor whose debt the will charges on the property. The wills and estate documents page sets out the notarial side of a will signing in more detail.

Changes made on the page, and the second affidavit

A will that leaves the signing with a handwritten correction raises a separate question: was the change there when the will was signed, or added afterwards? Section 18 of the Act answers the legal side. An alteration made after a will has been made has no effect, except to invalidate words it renders no longer apparent, unless it is made in accordance with the rules for making a will. It is validly made when the testator's signature and the witnesses' subscriptions appear in the margin or near the alteration, or at the end of a memorandum referring to it.

Rule 74.04 handles the evidence side. Where an alteration, erasure, obliteration or interlineation has not been attested, the application needs Form 74E, an affidavit as to the condition of the will at the time of execution. Only a person who saw the document when it was signed can describe its condition at that moment, which is the same timing problem as Form 74D, one layer further in.

Handwritten wills and signing over video

Section 6 allows a testator to make a valid will wholly in their own handwriting and signature, without formality and without any witness. A holograph will therefore has no witness to swear an affidavit of execution. The rule substitutes Form 74F, an affidavit attesting that the handwriting and signature are those of the deceased.

Section 4 (3) permits the witnessing requirements to be met through audio-visual communication technology, on conditions: at least one person acting as a witness must be a licensee within the meaning of the Law Society Act at the time, the signing and subscribing must be contemporaneous, and any requirements in the regulations must be met. Section 4 (4) allows the signatures to be made on complete, identical copies signed in counterpart. A notary public who is not a Law Society licensee cannot be that witness, so remote execution of a will is not something a non-lawyer notary office can complete. In-person witnessing carries no such condition.

What happens at the desk

Two separate acts can take place at one appointment. The first is the signing of the will: the testator signs or acknowledges the signature before two witnesses who are present together, and the witnesses subscribe in the testator's presence. The Notaries Act lists witnessing or certifying, and attesting, the execution of a document among a notary's powers, along with the powers of a commissioner for taking affidavits.

The second is the affidavit. One witness swears or affirms Form 74D before a commissioner, and the original will is attached and marked as an exhibit, as rule 74.04 (1) describes. Everything that applies to any affidavit applies here: the deponent attends in person with current government photo identification, and the affidavit is signed in front of the officer, not beforehand. The difference between an affidavit and a statutory declaration explains the oath side, and an affirmation carries the same weight as an oath.

What the affidavit does not settle

An affidavit of execution is evidence of one thing: how the document was signed. Several questions sit outside it.

• Capacity and intention. A witness describes the signing, not the testator's state of mind, and a signature block records no finding on capacity.
• What the will does. Whether the gifts work as intended, and how the estate is divided, depends on the drafting. Drafting a will and witnessing its execution are two different jobs, and drafting is work for a lawyer who practises in estates.
• Whether a certificate is issued. That is decided by the court on the whole application.
• Whether it is the last will. A later will, a codicil or a revocation is a separate document, with its own execution and its own affidavit.

Where the will is drafted, complete and unsigned, and two eligible witnesses are available, the notarial part is short. Commissioning covers the oath itself, and booking a time is the straightforward end of it.