How To Write An Affidavit Of Execution

An affidavit of execution is a specific type of affidavit one of your witnesses signs to confirm they were present for the signing and witnessing of your Will. These documents are not legally required but are highly recommended.

While the making and witnessing of a Will doesn’t require a lawyer or other legal professional, an affidavit of execution does require the signature of a lawyer, commissioner, or notary public. 

You may be asking yourself: What the heck is an affidavit of execution? Read on for a thorough breakdown of what affidavits of execution are, what information they contain, and why you should have one (we’ve even included Notary Pro’s free affidavit drafting tool!) 

But first, it’s helpful to understand what an affidavit is, in general.

What is an Affidavit?

An affidavit is a written statement in which someone swears or affirms a set of facts is true. Affidavits are used as evidence in court proceedings and are submitted to a judge in place of evidence.

An affidavit often includes documents that back up the information the deponent (the person who made the affidavit) claims to be true. These documents get attached to the back of the affidavit as exhibits. Exhibits are marked by letters—Exhibit A, Exhibit B, and so on.

What Makes an Affidavit Valid? 

Affidavits must be administered by a legal professional to be valid. A legal professional includes:

• A lawyer
• A notary public
• A commissioner 

When making an affidavit, you have to swear or affirm that the information it contains is true. This step must happen in front of someone authorized by law to administer them. This person is called a commissioner for taking affidavits. In Ontario, notary publics, paralegals, and lawyers all have the power of a commissioner for taking affidavits. 

There are others in the legal profession that can commission affidavits, including legal assistants and law clerks. Although they aren’t automatically commissioners by way of their profession, they can apply to become commissioners.

What’s the Difference Between Swearing and Affirming an Affidavit? 

In order for a court to use an affidavit as proper evidence, they need to trust that the information in the affidavit is true (to the best of the deponent’s knowledge.) There are two ways to state that the facts in an affidavit are true: swearing and affirming. 

• Swearing is also known as ‘swearing an oath.’ An oath is an oral promise that someone is telling the truth. In swearing an oath, the person refers to the God their religion recognizes. 

Affirming is another way to promise what you’re saying is true but doesn’t rely on a reference to a religious deity. Anyone can make an affirmation instead of an oath if they prefer. 

What is an Affidavit of Execution?

An affidavit of execution is a specific type of affidavit one of your witnesses signs to confirm they were present for the signing and witnessing of your Will. Once an affidavit of execution is signed, the original Will is attached as Exhibit A. 

Like all affidavits, affidavits of execution must be sworn or affirmed in front of a commissioner, notary public, or lawyer in order to be valid.

Is an Affidavit of Execution Always Required?

An affidavit of execution is not required to make a Will legally-binding. But, if your Will is ever required to go through probate, the courts will request one so it’s generally a good practice to get one signed (more on the probate process below.)  

Taking the extra time and effort to complete an affidavit of execution can save your loved ones some headaches down the road by avoiding unnecessary arguments and added legal costs if someone contests the Will. 

Having a court formally accept your Will as “valid” also helps your executor avoid potential roadblocks when wrapping up your affairs—like distributing or selling off your assets and closing your accounts. 

If your estate situation is uncomplicated and no-one challenges your Will after you die, you may not need to go through this process. However, preparing for the possibility of probate is the best way to protect yourself and your family.

The Probate Process

Probate is required for anyone who passes away owning any assets, like vehicles or property, whether they have a Will or not. The probate process is relatively the same across all provinces, with the exception of B.C, where an affidavit of execution is not required. If a Will is present at the time of someone’s death, the purpose of probate is for a court to:

• Determine whether the Will is valid; and,
• Confirm the authority of the person chosen to be executor of the estate.

If the deceased didn’t make a Will, a family member will need to apply for a Certificate of Appointment to become the executor. Other circumstances that require you to apply for probate include: 

• The Will exists but doesn’t name an executor
• A financial institution (like a bank) wants proof of a beneficiary’s authority to receive your assets
• There’s an argument about who should be executor
• There’s an argument about whether a Will is valid or not
• The Will names beneficiaries who are not able to provide legal consent

In some cases, your executor might want to apply for probate even if it isn’t required, for example:

• For extra legal protection in the event someone contests the Will
• To defend or pursue any litigation associated with your estate
• To specify the amount of time someone has to come forward to claim part of the estate 

Probate can take as long as 12-14 weeks ; however, the process is considerably shorter when an affidavit of execution is present. Without the affidavit, a judge would have to track down witnesses to confirm they were present at the Will-signing. This gets even more complicated and time-consuming if the witnesses are no longer alive!

How to Write an Affidavit of Execution 

Your affidavit of execution is mighty important, but that doesn’t mean it needs to be long or filled with convoluted legalese. There is only a handful of must-haves all affidavits must include: 

• The name of the testator (the person writing the will,) and the city/town and province/territory they live in 
• The names of both your witnesses and the city/town and province/territory each witness lives in 
• The date your Will was signed and witnessed
• The date the affidavit of execution was signed and witnessed 

Some provinces provide their own affidavit templates to save you some time and effort:

• Ontario’s Affidavit of Execution 
• Alberta’s Affidavit of Execution 
• Manitoba’s Affidavit of Execution 
• Saskatchewan’s Affidavit of Execution
• New Brunswick’s Probate Rules’ Form 2I and Form 2J
• Nova Scotia’s Affidavit of Execution

However, companies like Epilogue and Notary Pro have made it very easy for Canadians to create an Affidavit that’s ready to sign. Epilogue is Canada’s only online Will platform founded by lawyers and they are also the only online estate planning solution that provides a free Affidavit document with every Will.

Notary Pro offers a free Affidavit drafting service for those living in Ontario, Alberta, Manitoba and Saskatchewan (with more provinces coming soon!) Simply complete this form and in minutes you will have an Affidavit of Execution that’s ready to be notarized and signed.

Notarizing an Affidavit of Execution

In order for your witness to complete (execute) an affidavit of execution, it must be commissioned by an authorized official to be valid. This is what your witness can expect:

Step 1: A commissioner will ask your witness whether the information in the affidavit is true. 

Step 2: Your witness must then swear or affirm that it is. 

Step 3: After they do that, they sign the affidavit in the commissioner’s presence. 

Step 4: The commissioner then signs the document themself and stamps it with a seal. 

Step 5: The commissioner will then attach the Will along with any other Exhibit to the affidavit and will mark them accordingly.

In order for a commissioner to administer the affidavit, they will ask your witness to present government-issued photo identification. This can be a driver’s license, passport, or permanent residency card. 

Remember, the probate process requires an original, signed affidavit of execution, so make sure you store the affidavit in a safe location, along with the rest of your estate planning documents.

One Last Word on the Affidavit of Execution 

Never take your original documents apart or alter their condition. For example, if you stapled your witness’s affidavit of execution to your Will, don’t take out the staples and re-staple them back later—this could lead to a judge thinking the affidavit was tampered with. For this reason, many people choose to complete their affidavit of execution once they’re confident they won’t need to update their Will many more times.

Although an inconvenient step, having an affidavit of execution can be a potentially crucial safety net to save your loved ones time and heartache down the road.