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Wednesday, August 4, 2010

What if both witnesses to the Will are deceased?

When a Will is sent to the court to be probated, there has to be evidence that the Will was properly signed and witnessed. This evidence is normally given in the form of an affidavit, which is a written, sworn statement given by one of the people who signed their names as witnesses to the Will. After it is completed and sworn, the affidavit is attached to the Will and they are kept together until they are needed.

In most jurisdictions, the affidavit can be prepared as soon as the Will is made. However, it sometimes happens that the affidavit was never prepared. This could be because it was not allowed by law, or because the Will was done long ago before the law allowed affidavits to be made while the testator was still alive, or simply because nobody ever got around to doing it.

This sometimes leads to a situation where a testator has died, and the Will needs to be sent to probate, but there is no affidavit. You will not get a Grant of Probate without it (unless of course you are probating a handwritten Will). If one of the witnesses to the Will is alive and able to sign an affidavit, then he or she can provide the document you need.

Unfortunately there isn't always a witness available. Sometimes both witnesses are deceased, if the Will was made a long time ago. Or it could be the case that you can't locate either of the witnesses, or that the only one you can find has lost mental capacity or has absolutely no recollection of the Will being signed. Then what do you do?

There are two possibilities. You can do one or both of them.

The first possibility is that there was another person in the room when the Will was signed but who did not sign their name as a witness. That person can prepare a sworn statement explaining the situation and swearing that they saw the proper formalities followed when the Will was sworn.

The second possibility is that there is someone who can swear that the signature on the Will is the signature of the deceased.

It would be best if the person who swears either of these documents is not a beneficiary under the Will. It would also be best if the person is not the spouse (legal or common-law) of the executor or of a beneficiary.

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