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Monday, February 25, 2013

Using a will kit: do you need the Affidavit of Witness?

If you have used a will kit, or are thinking about using one, please read this reader's question and my answer. It's very easy to make a mistake when preparing your own will, and ignoring instructions in the will kit isn't going to help.

"My husband and I recently did our wills through an online will kit. Do you think it's a necessary step for the witnesses to sign an Affidavit of a Witness to a Will?"

Yes, I do think it's a necessary step. Why would you choose to skip a step that the kit tells you to complete?

Assuming that you have made your will correctly and have had it witnessed correctly (two very big leaps of faith for online will kits, but that's a story for another day), then your will is valid without the Affidavit of Witness being attached. However, your will can't be probated without the Affidavit, so leaving off the Affidavit is a mistake.

When a will is sent to the court for probate, the court needs proof that the will was properly signed and witnessed. By "properly" I'm referring not just to the fact that each page was initialled and the last one was signed, but also to issues such as the person signing being of the age of majority and being of sound mind. This proof is provided by the Affidavit of Witness.

If you don't have it signed now, once you pass away your executor will have to find one of the witnesses and have it signed. This won't necessarily be easy, as witnesses may move away or lose touch with you. Or they may pass away. Why cause this kind of problem when you can prevent it by having the Affidavit signed now?

It makes me nervous that you are questioning parts of the instructions provided to you for setting up a proper will. You may be skipping over information or steps that are vitally important to a valid document. Please do not make the mistake of assuming that you don't need the Affidavit because your will won't need to be probated. You can't know that ahead of time.

My experience has been that some people mis-use will kits. They don't want to bother getting advice or paying a lawyer so they wilfully ignore potential issues and problems. Those are the people whose families pay for it later. You can produce a valid will using a will kit, but only if you have followed all of the instructions provided by the kit, including the advice about getting the Affidavit signed.

4 comments:

  1. My partner recently used a will kit and made an appointment with his chosen witnesses to sign their affidavits and witness his signature. However he had a massive stroke before their meeting and did not get the will signed.
    Given the circumstances is the will valid?

    ReplyDelete
    Replies
    1. This is something I recommend that you take to an experienced wills lawyer close to you, and here is why: on the face of it, an unsigned will is not valid. A will kit will is even tougher, because you don't have the involvement of a lawyer to back up your story. However, some places in Canada have "substantial compliance" legislation for wills, meaning that the courts can fix some things if the proper evidence is there. I don't know if the will you have would be suitable, but it's definitely worth a try.

      Lynne

      Delete
  2. can lawyers help with assisted death?

    ReplyDelete
    Replies
    1. No. Lawyers can assist with pre-death planning such as preparing a will, power of attorney, or health care directive. Lawyers can also help with the administration of an estate post-death. But assisted death requires a doctor.

      Lynne

      Delete

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