Quick answer: An affidavit of execution is a sworn statement by one of the witnesses to a will, confirming that the will was signed and witnessed the way the law requires. It provides proof, later relied on in the probate application, that the will-maker signed the document in front of two witnesses who were present together and also signed. Getting a witness to swear this affidavit at the time the will is signed saves difficulty after death, when a witness may be hard to find, unavailable, or deceased.
Your Last Will and Testament is one of the most important documents you’ll ever make. Whether you have a simple estate or a complex estate with many assets, a will is essential if you want a say in what happens when you die. If your will doesn’t meet certain legal requirements, it may not be enforceable. That can lead to delay, costly estate litigation, and the possibility of your estate being distributed in a way you never intended.
The thought of your will being declared invalid after your death is unpleasant, to say the least. The good news is that there are ways to alleviate that risk and reinforce the validity of your will and other estate planning documents (e.g., Enduring Power of Attorney). One easy and effective step is to complete an Affidavit of Execution. An Affidavit of Execution of Will is a sworn statement by a witness confirming that a will was properly signed and executed according to legal requirements.
At Onyx Law Group, we understand that creating a will is one of the most important legal steps you can take to protect your family and secure your legacy. Our experienced estate lawyers have in-depth knowledge of British Columbia’s Wills, Estates and Succession Act and will ensure your will is legally valid, comprehensive, and tailored to your unique needs. We welcome you to contact us today to find out more.
In this blog, we will take a look at Affidavits of Execution and why they are important.
What Makes a Will Valid?
To understand why Affidavits of Execution are so important, it’s helpful to first know the requirements to make a valid will in BC. For a Last Will and Testament to be valid, it must meet formal requirements as set out in section 37 of BC’s Wills, Estates and Succession Act (“WESA”). The will must be:
- In writing,
- Signed by the will maker, and
- Signed in the presence of two witnesses who are over the age of majority and who also signed the will.
If your will does not meet those formal requirements, it’s an invalid will and of no force and effect without a court application. It will be necessary to obtain a court order after your death, “curing” your will of its deficiencies pursuant to section 58 of WESA. If you made your will outside of Canada in a jurisdiction that has different formal requirements, a BC court application under section 80 of WESA may be needed to get an order that your will is valid pursuant to the rules in jurisdiction where it was made.
Affidavit of Execution BC
An Affidavit of Execution is a legal document that is signed by a witness in relation to the signing of another document, such as a will or other estate planning documents (e.g., codicil, Enduring Power of Attorney, living will, a gift deed).
What Is an Affidavit of Execution of Will?
In the context of a will, the Affidavit of Execution provides evidentiary support that the formal requirements discussed above were met when the will was signed.
How to Make an Affidavit of Witness to a Will
An Affidavit of Execution of will must be sworn in front of a commissioner, notary public, or lawyer to be valid. The witness swears or affirms that they were present when you signed your will, that they were in the presence of you as well as the other witness when the will was signed, and they attest that those statements are true.
The affidavit typically also includes details such as the date and place of signing and the full names of the witnesses. It may also contain a statement about the will-maker’s willingness to sign and apparent mental capacity to do so. The will referred to in the Affidavit of Execution is attached as an exhibit to the Affidavit of Execution. The affidavit is then stored along with your original will.
Do You Need an Affidavit for a Will?
It’s certainly possible to have a valid will in British Columbia without one, but an Affidavit of Execution provides strong evidentiary support that your will or codicil was executed in compliance with the requirements under WESA.
Why Is an Affidavit of Execution Necessary?
An Affidavit of Execution helps to confirm the validity of your will. It authenticates that proper process was followed when your will was executed. It can provide invaluable evidence to streamline probate and to defend against a will challenge, should one arise after your death.
What Are the Benefits of an Affidavit of Execution?
There are many benefits to having an Affidavit of Execution for your will. In addition to providing evidence that the will was properly executed and witnessed, the affidavit can also help prevent forgery and verify the identity of the will-maker.
If your will must undergo probate, an affidavit of execution provides substantial evidence to authenticate the making of your will. This can streamline the probate process, saving time and legal costs. In fact, an Affidavit of Execution is required as part of the probate process in all Canadian provinces except for British Columbia.
How an Affidavit of Execution Helps if a Will Is Challenged
A properly executed affidavit can also provide protection for your beneficiaries should issues arise after your death.
If the validity of your will is challenged—for example, on the basis that you lacked testamentary capacity or that you didn’t have knowledge and approval of the contents of your will—the courts will request an Affidavit of Execution to authenticate the making of your will. The Affidavit of Execution provides strong evidence that the will was properly executed in accordance with the requirements in WESA.
Once the court is satisfied that your will was executed in compliance with WESA, it then gives rise to the “presumption of due execution.” The presumption of due execution benefits the person or people seeking to prove that your will is valid and should be enforced.
Upon proof that your will was duly executed with the proper formalities after having been read over by or to you, and you appeared to understand it, it will generally be presumed that you knew and approved of the contents, and you had the necessary testamentary capacity. The burden then falls on the person challenging the validity of your will to provide evidence to rebut the presumption.
When Should an Affidavit of Execution Be Obtained?
While an Affidavit of Execution is not typically needed until much later, it is highly recommended that the affidavit be obtained when the will is executed, or as close in time as possible.
If the Affidavit of Execution is not obtained until after your death, it can be difficult—if not impossible—to track down the witnesses who were present when you signed your will. Your executor will be stuck trying to locate one or more witnesses, which delays the probate process and means your beneficiaries have to wait before they can receive their inheritance from your estate.
Rules About Witnessing the Execution of a Will
You should be aware that there are rules about who should serve as a witness when signing a legal document such as a will or codicil.
Who Can Act as a Witness for the Execution of a Will?
BC estate law (WESA) requires two people to witness the execution of a will. Both witnesses must be over the age of majority (19+) and of sound mind. Beyond that, there aren’t any other requirements. That being said, it is generally the best practice not to have the executor or guardian named in your will serve as a witness.
The lawyer who prepared your will, a commissioner, a notary, and/or their staff may act as witnesses. Your friends and family members can be witnesses, too, but you should be very careful about which of them you ask. They may forfeit their right to inherit under your will if they act as a witness.
What Happens if the Witness to a Will Is Also a Beneficiary?
Gifts to witnesses are addressed in Section 43 of WESA, and state that you should not have any of the following people act as a witness to the signing of your will:
- Anyone who is a beneficiary under your will.
- Anyone who is the spouse or partner of any beneficiary under your will.
- Anyone else who may potentially benefit under your will, such as the adult child of a beneficiary.
If any of those people act as witness, it voids a gift in your will to that person unless they can prove to the court that you intended to make the gift to them. That costs time and money, and they may not ultimately be successful in convincing the court of your intentions. The safer bet is to avoid having any beneficiary, potential beneficiary, or their spouse serve as a witness.
How Many Witnesses Are Needed for an Affidavit of Execution?
While two witnesses are required for the execution of your will, typically only one of the witnesses is needed to swear an Affidavit of Execution. The affidavit, if properly prepared, should provide the full legal name of the other witness to the execution of the will.
Bottom Line on Affidavits of Execution of Will or Codicil
Not having an Affidavit of Execution can lead to delay, stress, and extra costs for your surviving loved ones. In addition to not having an Affidavit of Execution of will or codicil, there are other common pitfalls that may lead to BC estate litigation disputes.
If you’d like to discuss how to avoid pitfalls so you can achieve your estate planning goals, or if you’re an executor or estate beneficiary concerned about the potential for a BC estate litigation claim, contact an experienced estate lawyer at Onyx Law Group.
We invite you to call (604) 670-5138 to schedule a consultation to discuss your matter with a passionate and knowledgeable lawyer who can advise you on the best steps forward. You have nothing to lose and so much to gain.
FAQs
How to Create an Affidavit of Execution of Will?
An Affidavit of Execution must be sworn by one of the two witnesses to the signing of your will. The affidavit contains a statement that the witness was present and observed you and the other witness sign your will. The witness swears the truth of the statements in the affidavit in front of a commissioner of oaths (a lawyer or notary public, for example).
The easiest way to create an affidavit is to have a law firm draft and witness your will. One of the witnesses can simply sign the affidavit while signing the will in front of a lawyer.
What Is the Most Common Use of an Affidavit of Execution?
The most common use of an Affidavit of Execution is to validate wills during the probate process.
Is an Affidavit of Execution Required in BC?
An Affidavit of Execution is not required by law in BC, but is very highly recommended. The affidavit will be invaluable if your will has to go through probate or if your will is challenged after your death.
What Happens if the Affidavit of Execution Is Lost or Damaged?
Assuming one of the witnesses is still available, a new affidavit can be commissioned.
Is Notarization Necessary for an Affidavit of Execution in BC?
In British Columbia, an Affidavit of Execution requires notarization to be valid, even though the will itself does not need to be notarized.
Can a Witness Also Be an Executor of the Will?
They can, but they shouldn’t. A witness to a will should be someone who is over the age of majority and does not have an interest in your estate.
Can the Affidavit of Execution Be Signed After the Testator’s Death?
The affidavit can be signed after your death if at least one of the witnesses is alive and can be tracked down. It’s much easier and less risky to simply prepare the affidavit at the same time as the will itself.