Affidavit of Execution

An Affidavit of Execution is a document, which is sworn or affirmed in the presence of a commissioner of oaths (a lawyer or notary public) and proves a Will was properly signed and witnessed. If an application for a certificate of appointment of estate trustee with a Will is made, an Affidavit of Execution must be filed with the court, with the original Will attached.

In Ontario, the Succession Law Reform Act sets out the requirements for the proper signing and witnessing of a Will. The person making the Will (the "testator") must sign it at its end, sign it in the presence of at least two witnesses and the two witnesses must sign the Will in the presence of the testator. The rules were changed following COVID-19 to permit witnessing using videoconferencing technology, as long as one of the witnesses is an Ontario lawyer or paralegal. Note that there are different rules for certain circumstances which are not covered here (e.g. holographic Wills, persons on active military services, sailors, persons who are unable to sign, etc. )

In an Affidavit of Execution, one of the witnesses swears or affirms that they witnessed the testator sign the Will in the presence of both witnesses and signed the Will as a witness in the testator's presence. The form must be modified depending on who was present in person or by video conference. Here is a link to the Ontario court form of an Affidavit of Execution of Will or Codicil in effect since January 1, 2021: rcp-e-74-8-0920.doc. The lawyer or notary public who commissions the Affidavit of Execution must mark the reverse of the signature page of the Will as an Exhibit.

Although an AOE does not have to be completed when the Will is signed, it is much simpler to do so. It avoids issues which may arise when trying to locate witnesses at a later date. With WillMate, if you choose to sign the Will with us, we will prepare the affidavit of execution. If you choose to arrange for the signing of the Will yourself, you will be responsible for completing the document and having a witness swear the affidavit in the presence of a notary or lawyer.