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.
A Will must meet certain legal requirements to be valid. If your Will doesn’t meet those 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 did not intend.
There are steps you can take to reinforce the validity of your Will and other estate planning documents such as an Enduring Power of Attorney. One easy and effective step is to complete an Affidavit of Execution. Let’s have a look at affidavits of execution and why they are important.
To understand why affidavits of execution are so important, it is 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:
If your Will does not meet those formal requirements, it is an invalid Will and of no force and effect unless an applicant is successful in obtaining a Court order pursuant to section 58 of WESA that the Will is cured of its deficiencies, or the Will is valid pursuant to the jurisdiction that it was made pursuant to section 80 of WESA (e.g., if you made your Will outside of Canada in a jurisdiction that has different formal requirements).
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). 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.
The 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. It 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.
An Affidavit of Execution helps to confirm the validity of your Will. It is certainly possible to have a valid Will in British Columbia without one, but the Affidavit of Execution authenticates that proper process was followed when your Will was executed. That evidence may be necessary for probate or to defend against a Will challenge.
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, the 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.
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.
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.
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 to not 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 Will itself does not need to be notarized). 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.
Gifts to witnesses is addressed in section 43 of WESA, which states as follows:
43 (1) Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to
(a) a witness to the will-maker’s signature or to the spouse of that witness,
(b) a person signing the will by the will-maker’s direction, or the spouse of the person signing, or
(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).
(2) For the purposes of subsection (1), the relevant time for determining whether one person is the spouse of another is the time when the will was made.
(3) If a gift is void under subsection (1), the remainder of the will is not affected.
(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.
(5) Extrinsic evidence is admissible for the purposes of establishing the will-maker’s intention under subsection (4).
So, the effect of WESA section 43 is that you should not have any of the following people act as a witness to the signing of your Will:
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 intention. The safer bet is to avoid having any beneficiary, potential beneficiary, or their spouse serve as a witness.
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.
The BC estate litigation lawyers at Onyx Law Group have seen many estate files where family members dispute a Will because the Will was prepared inadequately. Failure to comply with formal validities can lead to a will being declared invalid. (Note that there are other common pitfalls that may lead to BC estate litigation disputes – see here for our tips on how to avoid them).
If you would like to discuss how this applies to achieving your estate planning goals, or if you are an estate beneficiary concerned about the potential for a BC estate litigation claim, we invite you to call (604) 200-8492 to schedule a free 30-minute consultation with Onyx Law Group.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at
(604) 900-2538
