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Monday, July 5, 2010

Who can witness a Will?


It's easy to make mistakes when you're making legal documents without a lawyer, and witnessing is certainly an area that causes problems. To be fair, I have once or twice seen lawyers make mistakes with witnessing too!

Who can witness a person signing his or her Will or Codicil? Pretty much anyone who has reached the age of majority and is mentally competent can be a witness, but there are some exceptions.

No beneficiary of your Will should be a witness to that Will. Neither should that beneficiary's spouse or common-law spouse be a witness. If they do act as a witness, the gift you want to leave to that beneficiary becomes invalid. Not only would that disappoint the beneficiary, but it could also leave you partially intestate (i.e. some assets not covered by the Will).

It is perfectly alright for your executor to be a witness. However, that won't work if the executor is also a beneficiary, as mentioned in the previous paragraph. If the executor acts as a witness, he or she might also be endangering his or her chance of being paid for acting as your executor.

It is alright for a creditor of the deceased to be a witness.

When I'm visiting a person at their home or at a care facility to have a Will signed, it isn't always possible for me to bring witnesses along. In a case like that, neighbours or staff at the care facility can act as witnesses. To protect my client's privacy, I do not ask the neighbours or the staff to read the document, though I make it clear that it is a Will that is being signed.

A Will has to be signed by the testator in front of two witnesses who both watch him or her sign. Then the witnesses both sign in front of the testator and each other. Later, one of the witnesses must sign an Affidavit stating that all of the proper formalities of Will signing were followed.

A holograph Will that is 100% in your own handwriting does not need to be witnessed (make sure you date it and sign it though).

76 comments:

  1. Can the brother-in-law of the lawyer who drafted the will, sign as a witness.

    ReplyDelete
    Replies
    1. Yes. The relationships that matter in terms of witnessing are those of the testator, not the lawyer.

      Lynne

      Delete
  2. Can my brother and his wife sign as witnesses on my will?

    ReplyDelete
    Replies
    1. Yes, they can, as long as neither of them is ever going to be a beneficiary of your will. If they are, then the witnessing will be valid, but they will never receive their inheritance under the will.

      Lynne

      Delete
  3. In this article you say " To be fair, I have once or twice seen lawyers make mistakes with witnessing too!" What can be done if this happens? In our case my Grandmother has passed away and now we have found out that her lawyer allowed my aunt (a named beneficiary of the will) to act as a witness.If it is known by all of the beneficiaries that the lawyer made a mistake by allowing a named beneficiary of the will act as a witness is there a way to allow my aunt to have what she should be inheriting?

    ReplyDelete
    Replies
    1. There are two possibilities. One is that the beneficiaries get together and agree that each will give up a bit of his or her share to the aunt.

      The other is that the aunt sues the lawyer who drafted the will for the loss she suffered due to his or her mistake. Cases have held lawyers liable for mistakes like that.

      Lynne

      Delete
    2. My dad passed his girlfriends mom signed as witness while living with us is this allowed

      Delete
    3. Yes, the girlfriend's mom can sign as a witness as long as she is not a beneficiary of the will or the spouse/CL of a beneficiary.

      Lynne

      Delete
  4. Does a codicil need to be a registered attachment to a registered notarial will?

    ReplyDelete
    Replies
    1. A codicil is intended to be a part of the will, therefore if a will is listed in a registry, it only makes sense to list the codicil as well. And they should physically be stored together as well.

      Lynne

      Delete
  5. can a lawyer have his secretary sign as a witness

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  6. Can a friend of a "Releasee" be a witness on a "Release Letter" signed by a "Releasor"

    ReplyDelete
  7. Can the notary public notarizing the self proving affidavit and his secretary be the witnesses to the will?

    ReplyDelete
  8. " If the executor acts as a witness, he or she might also be endangering his or her chance of being paid for acting as your executor." Why is that?

    ReplyDelete
  9. Can my sister and her husband sign as witnesses even though they live in the UK.

    ReplyDelete
  10. I'm going to move near my children and woman I live with is going in a home. I have a homemade will that is witnessed by 2 people and I left everything to my biological children. Can the person I lived with contest the will even though she is ill and going in a home.

    ReplyDelete
    Replies
    1. Being ill and going to a home is not a reason to lose an inheritance so I honestly don't know what that has to do with anything.

      The rights of the person you live with depend on a number of things, the first of which is the province you live in. Most but not all recognize common law rights of inheritance so the person you lived with would have a right to contest your will.

      If your point is that she won't contest because she is too sick, you should realize that a person can act for her. For example, if she had a guardian or a power of attorney, that person could conduct the lawsuit for her.

      Lynne

      Delete
  11. Can wife of the executor be a witness, too? Executor is brother of the testator, and not a beneficiary of the will, i.e. neither executor and the wife. But executor will have the funds in Trust.

    ReplyDelete
  12. My aunt asked my parents to sign her will,as her witnesses. She told them that she was writing this will without her husband knowing. Are you allowed to do that?

    ReplyDelete
    Replies
    1. Yes, you are allowed to do that.

      I know you didn't ask this, but if your aunt left anything to your parents, and they are the witnesses, the gift to them will be void.

      Lynne

      Delete
  13. Hi Lynne. My father in law met a woman while he was fighting many illnesses. Before she moved in and before they got married he made her get a loan to pay off her debts as she lived off credid cards. He also got a prenub drawn up stating if she was to leave him she would get nothing but if she stayed until he died she would receive the furniture and a 1/3 of the value of his house.His children and grandchildren were to split the rest. He always made sure to give us a copy of his latest will along with a list of his current possessions for example... a 10 page duotang listing off all his tools and their serial numbers and told us to get a lawyer if something doesn't seem right.Unfortunately this last will we had a copy of was not properly executed as there is only one witness.here's the situation.... He recently died and his wife of 3 years presented us with a new will that is written entirely in her own hand writing appointing her as executrix as well as full beneficiary. No mention about his children or grandchildren at all, which i'm aware can be fought through the wills and variation act.On these pages appointing her as executrix and full beneficiary neither of the witnesses initialed anywhere on the page.It was a do it yourself will kit with 4 pages in total. My father in law's initials are not consistent wit his writing either. She told us she needed time to grieve and promised us she wasn't going to do anything and we have her recorded admitting she knew she had to probate because absolutely nothing was in joint names with her. She told us she would be in touch. Well about 2 weeks goes by and nothing. Then we try to call and no answer. Then her son calls us and says she no longer wants to communicate with us. Thats when we found out she sold all of his assets including ones her husband wanted his grandson to have. She didn't apply for probate giving us a chance to send her a notice of dispute before she flogged it all. she sold about $65,000 worth of assets for half their market value. Luckily we froze his bank accounts shortly after we found out she was using his debit card too. (he kept all of his accounts separate from her) My father in law had lung cancer, cirrhosis of the liver and a frontal lobe brain injury.He took over 11 meds at the time the will was made and majority of them have cognitive effects. We are fighting her as her actions have been spiteful and her errors were deliberate. She has done everything a trusted executor should not do. She knew him for 3.5 years and my husband (his son) was his best friend for 34.The laws arent strict enough and dont always protect the innocent.She waived her fake will and managed to sell 2 Harleys, a boat, a truck, atv, and several thousands of dollars worth of wood working tools. Now we have nothing that was his to have as a keepsake in the family. It hasn't been easy for us kids to let that go and just focus on the dollar value of them. They meant more to us than that! My questions are Is the will valid if the witnesses do not initial every page? Is it not fraud that she used his bank card especially after his passing when she wasn't even on the account? And is it against the law the sell assets in an estate without probate if they are not in joint names? Thanks Lynne

    ReplyDelete
  14. Do the testator and the witnesses must all sign the affidavit in front of a notary public?

    ReplyDelete
    Replies
    1. If you're in Quebec, most wills are done by notaries public, so they would take care of the signing and witnessing. In any other province or territory, there is generally no involvement by a notary.

      Lynne

      Delete
  15. Hi there

    My nan recently passed. She has a will signed by two witnesses. One is a lawyer who is now deceased. I was told by the bank while trying to settle her estate that I have to have her Will notarized stating it is her last will of testament. Do I need a lawyer to do this?

    Mar

    ReplyDelete
    Replies
    1. Hi Mar,
      At first I thought you must be trying to get the affidavit from the witness so that you can apply for probate of the will. Then you said that you are following instructions from the bank, which makes me think you're not actually applying for probate but dealing directly with the bank only. Perhaps you could clear that up for me so that I can give a proper answer.

      Lynne

      Delete
  16. Hello, though I would be leaving all assets to my Wife, as stated in a simple last will that I prepared, would my children still receive the monies that they are entitled to, as beneficiaries of a life insurance policy?

    Thank you

    ReplyDelete
    Replies
    1. Yes, they would. Your life insurance policy proceeds are not part of your estate so they are not controlled by your will. Since you said your will is simple, it probably doesn't even mention life insurance so there is little chance that you have accidentally changed the beneficiary through your will.

      Lynne

      Delete
  17. What is the effect to a beneficiary's right to claim a bequest if he or she subsequently marries a witness to the Will who was not a spouse or common law spouse of a beneficiary at the time of the execution of the Will?

    ReplyDelete
  18. The article states "Later, one of the witnesses must sign an Affidavit stating that all of the proper formalities of Will signing were followed." Is this correct for Alberta? Does this affidavit need to be completed by a lawyer or Commissioner for Oaths?

    ReplyDelete
    Replies
    1. Yes, it is true of Alberta. However, in Alberta, the affidavit (Affidavit of Witness to Will) is often done at the same time as the will is signed. An affidavit is a document that must be sworn in front of a Commissioner for Oaths or Notary Public, so yes, you are going to have to use someone to do that. It could be a lawyer, but others are Commissioners for Oaths too, such as clerks of the court, legal assistants, justices of the peace, etc.

      Lynne

      Delete
  19. You may have answered this but I wanted to make sure... Does a notary have to natorize my will in ontario or is it sufficient that I have witnesses that are not beneficiaries?

    ReplyDelete
    Replies
    1. No, you do not have to get your will notarized. That adds nothing at all to the validity of the document.

      Lynne

      Delete
  20. I'm going to be in my brother will he's separated and health issues can I be the executor of the will if I am the one who will be named in the will and only me

    ReplyDelete
  21. I want to know can I be the executor of the will if I am the one who will be named in the will and only me

    ReplyDelete
    Replies
    1. You asked your question twice and both times you referred to yourself as "the one who will be named". I'm guessing that by that you mean that you'll be the beneficiary. If that is in fact what you mean, then yes, you can be the executor.

      Lynne

      Delete
  22. If I have a lawyer draft the will, can that lawyer also sign as one of the witnesses?

    ReplyDelete
    Replies
    1. Hi Jerry,
      Absolutely, yes. In fact, this is standard practice.

      Lynne

      Delete
  23. I am living in Manitoba. Is it OK to sign and get my Will witnessed in a different province (Alberta)?

    ReplyDelete
  24. Hi Lynn,

    I'm hoping you can help me out. When my husband became ill his brother helped us out by avcessing an online template for a will. It is a simple will naming me as the benficiary as well as exevutor. My brother-in-law and his wife signed it.
    The will was approved my the funeral home and they took a copy of it.
    When I took the will to the bank, upon my husband's passing they froze his bank account and asked for the will to be notorized. At this time I have made an appointment for a lawyer next week but my question is this...In Ontario who can notorize a will legally? Does it have to be a lawyer? Can the bank freeze the account considering I am the executor on the will? Can my brother-in-law who had financial power of attourney access the account now that my husband has passed? I have no way to pay the bills from his account and I've had no income for a few weeks.
    Thank you for your help in advance.
    Jo-Anne

    ReplyDelete
    Replies
    1. I don't know what on earth that bank is thinking. Notarizing a will? That won't mean a thing. It won't give them any kind of protection or added security. Asking you to do that is a complete crock.

      Any notary public can notarize a will. Not all notaries are lawyers, though most are. The fact that notaries don't have to be lawyers is one of the reasons that notarizing it does squat.

      There are often problems with home-made wills, so I'm not surprised that the bank is being cautious, but telling you to get it notarized is idiotic. If they wanted a legal opinion on its validity or they wanted it to go to probate, I could understand those requirements because they would protect the bank.

      I would take this complaint higher. The person you talked to knows nothing. If you are not already dealing with the branch manager, start there.

      Your other possibility is to get the will through probate, if that can be done quickly. Even the bank can't argue with probate.

      In the meantime, there are some bills that can be paid directly from your husband's bank account. The funeral bill is one.

      Unfortunately, the power of attorney cannot be used because that document became void as soon as your husband passed away.

      This situation really irritates me, as they are putting you through all kinds of anxiety and problems without them even understanding what they are asking you to do. Tell them from me to give their staff some more training!

      Lynne

      Delete
  25. This comment has been removed by the author.

    ReplyDelete
  26. I work as a volunteer at an Ontario hospice. The hospice refuses to allow any of its volunteers and probably its staff to witness documents. Do they have the right to create such a policy?

    ReplyDelete
    Replies
    1. Hi Irenka,
      Yes, they do. In fact, pretty much every hospital and palliative care unit I've been to has that same policy. Usually pastoral staff are allowed to act as witnesses, if they are willing to.

      One time in a palliative care unit (hospice) we needed to get a will signed urgently, and we ended up with the priest and some guy who was visiting his mom in the next room as the two witnesses.

      Lynne

      Delete
  27. Can my
    Y brother in law sign will

    ReplyDelete
    Replies
    1. Since your question appears on a thread about witnessing I assume you are asking me whether your brother in law can be a witness to your will. He can, unless you are leaving something in the will to him or to your sister (his wife).

      Lynne

      Delete
  28. can i name my two daughters as executors to my will.

    ReplyDelete
    Replies
    1. Are they adults? Are they mentally competent? Can they work together? If so, then yes you can name them. The only remaining question is whether you SHOULD name them.

      Trust me, not everything that can be done should be done.

      Lynne

      Delete
  29. Hi! I just filled out my last will and testament online from law depot.ca. I am having a problem finding a Commissioner of Oaths. They told me to get the bank to witness my signature. The document is also asking when their term expires. I live in Edmonton. Can’t my physician or pharmacist be a commissioner of oaths and sign as a witness? Thsnks

    ReplyDelete
    Replies
    1. To my knowledge, most doctors and pharmacists are not commissioners for oaths, but you can always ask. Unless they handle a lot of legal documents they may not have anyone in-house with that designation.

      Clerks of the court in your local courthouse are commissioners for oaths, as are all lawyers, many legal assistants, and many police officers. You can also try provincial and federal government offices.

      They are asking about the expiry date because commissioners for oaths are registered with the government for a set period of time.

      Lynne

      Delete
  30. In Ontario, a Commissioner of Oaths is someone certified by the Province as such and is not a function of your day job. Banks usually have them and charge very little. Law offices have them especially as lawyers and other staff are typically commissioners. In other provinces, you don't need a Commissioner of Oaths to witness a will. You just need a witness. Are you sure you need a Commissioner?

    ReplyDelete
    Replies
    1. This is the part that makes me shake my head about home-made wills. People do as they are told with no understanding of what the steps actually mean. No wonder so many wills end up in court.

      Lynne

      Delete
  31. Do the witnesses to the will have to be citizens or residents of Canada?

    ReplyDelete
  32. Can a doctor caring for the testator witness a will signing?
    Can the son of the executor (sole beneficiary as per the "will") whom he/she lives with be a witness?

    What if there is only 1 witness? Is the will valid?

    ReplyDelete
    Replies
    1. Yes, a doctor can be a witness to a will.

      In your second question I assume that the sole beneficiary you mention is the executor person and not his/her son. A beneficiary cannot be a witness. While it may theoretically be alright for the son to be a witness, I wouldn't do that if I had a choice. There is a risk that if the sole beneficiary passes away, the inheritance is left to the son. The son could not inherit if he was a witness to the will.

      There is no circumstance that I know of in which one witness is mandated. If the will is 100% in the handwriting of the deceased, and the deceased lived in a province that allows handwritten wills, then no witnesses are needed. In every other case, two witnesses are needed. If there is only one, then no, the will is not valid. If the deceased lived in a province with what is called curative legislation, there might be a way to save the will through the courts, but it's an awfully expensive and uncertain process.

      Lynne

      Delete
  33. Is a will that is not signed by any witnesses legal?

    ReplyDelete
    Replies
    1. A will is only valid without witnesses if:
      a) it is 100% in the person's own handwriting (i.e. no forms with blanks filled in, no typewritten parts)
      AND
      b) it was made in a jurisdiction which allows handwritten wills. They are only valid in some provinces, not all.
      AND
      c) the will is signed by the person.

      Lynne

      Delete
  34. Is it ok for the two witnesses to a will to be related to each other? For example the lawyer signes as a witness and the lawyer’s sibling/spouse/parent/etc sign as a second witness. So both witnesses will have the same last name. This is assuming that neither witness is mentioned as a beneficiary in the will nor is a spouse to a beneficiary in the will.

    ReplyDelete
    Replies
    1. Yes, that's fine. In fact, my daughter works at my law firm and she and I witness wills together all the time.

      Lynne

      Delete
    2. Thank you so much for the response!

      Delete
  35. can a Will written for a resident of one Province (eg. Ontario) be witnessed by people who live in another province (eg. Quebec) ?

    ReplyDelete
  36. My mother in law had a will done up and her daughters friend being a commissioner of oaths signed and got two witnesses she does not know the contents of the will as for she didnt write it she just signed it leaving trust into the person validating it this is not valid as far as I know in alberta it has to be in the original persons handwriting is this true and should we see a lawyer

    ReplyDelete
    Replies
    1. You've got bigger problems than witnessing. Your MIL signed a will without knowing the contents? That's not a valid will.

      If a will is handwritten, then yes it has to be 100% handwritten by the person whose will it is. It's not valid if someone else writes it out for the person.

      I don't know whether "we" should see a lawyer or even who "we" refers to, but I would definitely recommend that your MIL see a lawyer. I am wondering at this point if she is being pressured into signing documents she doesn't really want to sign and I suspect there is going to major litigation once she passes away.

      Lynne

      Delete

  37. What is the effect to a beneficiary's right to claim a bequest if he or she subsequently marries a witness to the Will who was not a spouse or common law spouse of a beneficiary at the time of the execution of the Will?

    ReplyDelete
    Replies
    1. It should have no effect. The person was eligible to be a witness at the time the will was signed.

      Lynne

      Delete
  38. My partner is in hospital and unlikely to live. Neither of us have wills. His friends have all pretty much have passed except for one who is housebound. Who do you suggest we get as witnesses to a typed will?

    ReplyDelete
    Replies
    1. You may have to ask hospital staff to be witnesses. In some places, they are not allowed to do that and in others they are allowed. If the nurses and social workers are not allowed, ask the hospital's clergy instead.

      On one occasion, we were so desperate for a witness that we asked a fellow who was visiting his mother in the next-door room.

      You could ask a neighbour of yours or of your partner to stop in and be a witness. You could also ask co-workers. Call a Seniors Resource Centre and see if a volunteer will come by.

      Keep in mind that the witnesses do not have to read the will. Though they do have to know it's a will, they don't have to know its contents.

      Make sure you record the name, address, and contact information for the witnesses.

      Lynne

      Delete
  39. My wife is currently the beneficiary in my will. In the event she pre-deceases me, I have named someone to act as executor. I want to delete that someone and name my daughter as the executor. Can both she and her husband witness this change (Codicil)?

    ReplyDelete
    Replies
    1. If your wife predeceases you, who is then your beneficiary? I assume it is your daughter (and perhaps other children). If so, and your daughter or her husband witness the codicil, you risk cutting your daughter out of her inheritance. A codicil is an amendment to a will, so worst case scenario, the gift to your daughter would be void because she's a witness. Best case scenario, the will still stands but the codicil is invalid, leaving you with your old executor. I would not risk having the daughter or husband witness the codicil.

      Lynne

      Delete
  40. if the holographic will signed by witness (she is also the beneficiaries in the will)is invalid? need to apply for grant of probate or apply for grant of admin

    ReplyDelete
    Replies
    1. A holographic will does not need a witness, so therefore the existence of a witness' signature should be irrelevant. If it were my case (at least based on the info I have here) I would send it for probate.

      Lynne

      Delete
  41. In Manitoba, if one of the two witnesses to a will is also a Commissioner of Oaths in Manitoba, can that same witness also sign as a Commissioner of Oaths in the "Sworn Before Me" section on the Affidavit of Execution for the other witness?

    ReplyDelete
    Replies
    1. It's not ideal, but it's legal. Sometimes there isn't a third person available. I have done this in my office when there was no other option.

      Lynne

      Delete

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