Affidavit of Execution and Witness Problems in an Ontario Probate

When you apply to probate a will, the court wants some assurance that it was signed the way the law requires. Usually that comes from a witness. Problems arise when the witnesses have died, moved away and cannot be found, or when one of them turns out to be a beneficiary.

This article explains what the affidavit of execution does, what the court may ask for if a witness is unavailable, and how a witness who is also a beneficiary affects the gifts in the will.

What the affidavit of execution does

A formal will must be signed at its end by the testator, or by someone else in the testator's presence and at their direction, although a signature placed elsewhere is still valid if its position makes it apparent on the face of the will that the testator intended the signature to give effect to the will. The testator must make or acknowledge the signature in front of two or more witnesses present at the same time, and the witnesses must sign in the testator's presence. A holograph will, which is one made wholly in the testator's own handwriting and signed by the testator, is valid without any witness.

The affidavit of execution, Form 74D, deals with how the will was signed; who can swear it depends on your situation, so it is worth confirming with a lawyer. It is listed in the probate checklist alongside the Form 74A application, the original will and codicils, proof of death and the other documents.

Other affidavits replace or add to it in particular cases: Form 74E where the will has been altered or marked, and Form 74F for a holograph will. For a holograph will, the Form 74F affidavit confirms that the handwriting and signature are the deceased's. The affidavit must be signed before a Commissioner for taking affidavits, who must also sign it.

When a witness has died or cannot be found

Wills are often signed years before a death, so it is common for a witness to be unavailable. Rule 74.04(1)(d)(i)(C) lets the court require other evidence of due execution when a witness has died or cannot be found.

What other evidence is acceptable depends on the circumstances. The court decides what is enough in each case, so how this applies to your will depends on the facts, and it is worth confirming with a lawyer before you file.

If the document was not properly executed at all, there is a further route. For deaths on or after January 1, 2022, the Superior Court of Justice may order a document valid if it is satisfied that the document sets out the deceased's testamentary intentions, although this does not validate electronic wills.

If the registrar needs more, the application may be refused with a Registrar's Notice (Form 74O) stating the reason, and missing documents can be supplied when court staff ask for them.

When a beneficiary signed as a witness

Under the Succession Law Reform Act, a gift to a witness, to the witness's spouse, or to anyone claiming through them is void as to them. The will itself is not void, and the witness can still prove the will's execution.

There are two exceptions. The gift is not void if at least two other people who are not beneficiaries, or beneficiaries' spouses, also witnessed the will. It is also saved if the court is satisfied that neither the beneficiary-witness nor their spouse exercised any improper or undue influence on the testator.

Practical consequences for the estate

Where a share goes once a gift has failed because of a beneficiary-witness depends on the wording of the will and on your situation, so it is worth confirming with a lawyer before anything is distributed.

Everyone with an interest should be told about the application. It must be served on every beneficiary, including charities and contingent beneficiaries, before filing. A beneficiary who loses a gift because of witnessing may well have views, so expect questions.

A person with a financial interest can also file a request for notice (Form 74P) at any time before a certificate is issued. It expires three years after filing and can be renewed.

What to do next

• Look at the will and note the names and addresses of every witness.
• Check whether any witness, or a witness's spouse, is also named as a beneficiary.
• Try to locate each witness, and record the steps you took if you cannot.
• Ask whether anyone else was present at the signing, or whether the lawyer who drew the will kept notes.
• Gather the other probate documents listed in the court checklist.
• Get legal advice before filing if a witness is missing or a beneficiary signed.

Frequently asked questions