The Affidavit of Execution: Why Ontario Probate Applications Need It

When someone dies and their estate needs to go through probate, the court will not simply take the will at face value. It wants proof that the document in front of it was actually signed the way Ontario law requires. That proof usually comes from an affidavit of execution — a short, sworn statement from someone who watched the will get signed.

If you are preparing a probate application, or you are the person who witnessed a friend or relative's will years ago, understanding this document can save real time and stress.

What an Affidavit of Execution Actually Is

An affidavit of execution is a sworn (or affirmed) written statement, signed in front of a lawyer, notary, or commissioner of oaths, in which a witness confirms the basic facts of how a will was signed. It typically confirms things like:

• The witness was present when the testator (the person making the will) signed it, or acknowledged their signature
• Both required witnesses were present at the same time
• The testator appeared to understand what they were signing
• The document attached to the affidavit is the same will the witness saw signed

This is not a statement about whether the will is "fair" or reflects what the testator wanted long-term — it is narrow evidence that the signing itself followed the required formalities.

Why Probate Applications Need It

Ontario's Succession Law Reform Act sets out formal signing requirements for a valid will: the testator's signature, made or acknowledged in front of two witnesses present at the same time, who then also sign. When an estate trustee applies to the Superior Court of Justice for a Certificate of Appointment of Estate Trustee (commonly called probate), the court needs some way to confirm those formalities were followed — it was not in the room when the will was signed.

The affidavit of execution is the court's standard way of getting that confirmation. Without one, or without acceptable alternative evidence, a probate application can stall.

Who Can Sign One

Generally, either of the two witnesses to the will can swear the affidavit of execution, since both were present for the signing. In practice, it is often prepared and sworn by whichever witness is easiest to locate — sometimes the lawyer or law clerk who supervised the will signing, if they also acted as a witness.

The best time to get this done is right after the will is signed, while the details are fresh and the witnesses are still easy to reach. Many Ontario law firms routinely have a witness swear the affidavit on the same day as the will signing, and keep it attached to the original will in storage.

What Happens If No Witness Is Available Later

Wills are sometimes signed decades before they need to be probated, and by then a witness may have died, moved away, or become impossible to locate. This is one of the more common practical headaches in Ontario probate practice. Options an estate trustee's lawyer may need to explore include:

1. Locating the surviving witness, wherever they now live, to swear the affidavit
2. Using an affidavit already sworn at the time of signing, if one exists in the lawyer's file
3. Relying on other admissible evidence of due execution where no witness affidavit can be obtained, which is handled case by case and generally requires the court's involvement

Because the right approach depends heavily on the specific facts — how the will was drafted, whether a lawyer's file survives, how long ago the signing happened — this is an area where getting advice early avoids wasted time.

A Simple Way to Reduce This Risk

If you are making a will now, you can spare your future estate trustee this problem entirely:

• [ ] Have both witnesses swear an affidavit of execution at the time of signing, not years later
• [ ] Keep the affidavit attached to (or clearly cross-referenced with) the signed original will
• [ ] Tell your executor where the original will and any supporting documents are stored
• [ ] Avoid using witnesses you are unlikely to be able to locate again, such as acquaintances with no lasting connection to your family

A small amount of paperwork at the signing table can prevent months of searching later.

Frequently asked questions