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Wednesday, April 21, 2010

How do they know I followed the rules?

You may already know that when you make a Will, there are rules to follow about signing and witnessing. In almost all jurisdictions, the person signing the Will (the testator) has to sign in front of two witnesses. The witnesses each have to sign in front of the testator and each other. The witnesses can't be anyone who will inherit anything under the Will.

There are also more fundamental concepts that affect individual Wills. For example, a person making a Will must be of legal age, and must have mental capacity to understand what he or she is doing, and the consequences of his or her actions.

When lawyers prepare Wills for clients, we make sure that all of the rules and guidelines are followed so that the Wills will be valid.

So when a Will is probated, or needs to be used for other legal purposes, how does anyone know whether those rules were followed? After all, at the time the Will is needed, many years might have passed. The testator will no longer be around to confirm that all was done properly. And the witness might have moved away or died or can't remember the Will or simply can't be found.

There must be evidence that the Will was properly signed and witnessed. This evidence is given in a document called the Affidavit of Witness to Will. It's made at the time the Will is signed (ideally) but can also be made later if necessary. The Affidavit of Witness is attached to the original Will, which is marked as Exhibit A to the Affidavit. Those documents should be kept together always.

The Affidavit must be signed by one of the witnesses and sworn in front of a Commissioner for Oaths. In Alberta, only one of the witnesses must sign one of these.

The Affidavit describes how the rules were followed, such as revealing on what date the Will was signed, who was there, whether the witness believes the testator has mental capacity, and that the testator is of legal age to sign documents.

If you have a Will that does not have an Affidavit of Witness attached, this does NOT mean that your Will is necessarily invalid. All it means is that you need get one of these Affidavits prepared. Not all lawyers attach them automatically, though that is considered the best way to do things. If you Will is quite old, it might have been done before the Rules of Court were changed to allow you to get the Affidavit immediately (in the old days, the testator had to die first before the Affidavit could be sworn). Your Will cannot be probated without the Affidavit in Alberta and some other jurisdictions.

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