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.

Can a lawyer be executor, power of attorney and witness?

When a client sees his or her lawyer to talk about wills, powers of attorney and health care directives, a good deal of time is (or should be) spent talking about who the person wants to act on his or her behalf. Someone has to be named as executor of the will. Sometimes a person other than the executor is appointed trustee of certain trusts under the will. Sometimes a guardian has to be appointed for minor children. Then of course someone has to be appointed as the Attorney under the power of attorney, and as Agent under a health care directive.

The choice belongs to the client. The lawyer will make sure that the choice falls within legal parameters, and hopefully will also share the benefit of experience with previous client estates. From time to time a client will ask the lawyer to act as executor or power of attorney. Most of the time, the lawyer will refuse. Despite a public suspicion that lawyers will act as anybody's executor for the money, let me tell you that the time and headaches of being an executor far, far outweigh any fee a lawyer might collect. Most of us will rather stand on our heads underwater for an hour than act as an executor for a client, and would rather stay under there permanently than act under a power of attorney.

Regardless, it does sometimes happen that the lawyer accepts the appointment, usually because there isn't anyone else and nobody thinks of using a trust company. The following query was sent to me by way of e-mail by a reader and captures many of the questions people have when lawyers are appointed:

"What if a lawyer wrote the will which makes him executor of the will, and then the lawyer is the power of attorney for that person? Does the will become invalid as he also signed as a witness of the will?"

It is perfectly alright for a lawyer to prepare a will which appoints himself as executor. Having the lawyer act as witness to the will is not best practice, in my view, but it does not invalidate the will. The optics are not good when one person fills this many roles. A lawyer always needs to be aware of ethical responsibilities to clients, such as maintaining impartiality and it can appear that the lawyer was not impartial in a case like this.

Obviously I don't know the circumstances of the signing of this will, but I'm imagining a situation that was very short on time or physically remote or in some other way made it difficult to bring in an independent witness. There is also the possibility that the lawyer and the client were personal friends and that the lawyer took on these roles as a friend who just happened to also be a lawyer. No doubt the lawyer's file is thick with pages of notes on why the will and power of attorney were done this way; I know mine would be.

If the will leaves any money or goods to the lawyer as a gift, the will is still valid and so is the executor appointment but these gifts will be void. This is because he acted as a witness. The same rule applies to anyone who witnesses a will.

If you're considering asking your lawyer to be your executor or your power of attorney, check out a trust company first. They are cheaper than you think and very experienced with estate matters. You'll also avoid this kind of situation where one individual is taking on the role of lawyer, executor, trustee, power of attorney and witness.

What happens if a beneficiary acts as a witness?

During my seminar on Saturday, the attendees and I had a great discussion about the logistics of wills. Whether wills lawyers like it or not, plenty of people out there are making their own wills, and they want to know how to do it without making mistakes. I frequently get questions about witnessing, and this seminar was no exception.

The general rule for witnessing is that a witness should not be anyone who benefits under the will either directly or indirectly.

A person who is named in the will as a beneficiary should not act as a witness. Neither should the beneficiary's spouse (married or common law) be a witness. If they do act as a witness, the will itself is still valid, but the gift that would have gone to the beneficiary is invalid. In other words, the beneficiary isn't going to get what the will says he or she will get.

This will make things more complicated. The gift that would otherwise have gone to the beneficiary will be divided up according to local intestacy rules.

If you are making a will at home and you don't have witnesses, try asking a neighbour to come in and be a witness. The neighbour doesn't have to read the document; they just have to know that you're making a will. And don't forget to get the affidavit of witness to will done right away, before you lose track of the witness.

Is a Will signed with an "X" valid?

In the old days, people would sign documents with an "x" because they couldn't read or write. These days, documents are still occasionally signed with an "x" because even though the person signing can read and write, there is some physical impairment that prevents him or her from signing his or her name.

The physical impairment could be something that has been present from birth. It could be the result of a disease that is interfering with vision, or with motor functions, such as Parkinson's Disease. It could also be the result of an acute accident or illness situation in which the person is in a hospital bed, too weak or sick to sit up and sign properly.

These signatures are valid. In the case of a Will, the "x" signature, usually referred to as a "mark" must be explained in the Affidavit of Witness to Will that is attached to the Will. Each province has a different form for this Affidavit, but it serves the same purpose everywhere: to give evidence that the document was properly signed according to local laws.

A person signing with a mark rather than a signature would do so in front of two witness, as usual. Then one of the witnesses would sign and swear the Affidavit of Witness to Will that gives the details of the signing (e.g. that there were two witnesses, that nothing was handwritten in between the lines of the Will, etc). In the case of signing with a mark, an extra line or two would be added to the Affidavit to explain why a mark was used.

Not a lot of Wills are signed this way, but when they are, the signature is perfectly valid.

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.

How do I prove handwriting on a handwritten (holograph) will?

When a formal Will is probated, it is supported by a sworn affidavit of a witness who saw the deceased sign. This proves that the Will was actually signed by the right person. With a handwritten (known legally as "holograph") Will, no witnesses are required. So how do you prove that it was actually signed by the deceased and not someone else?

The key lies in the handwriting. You must prove that the handwriting on the Will is the deceased's handwriting. This isn't actually easy these days when nobody actually writes anything any more.

In Alberta, there is a set form called NC9 Affidavit of handwriting of deceased that you must use to prove the handwriting. It will be one of the documents that you submit to the court in your application for probate. Because it's an affidavit, the information in it must be sworn by you, or whoever the person is that knows the deceased's handwriting, in front of a Commissioner for Oaths so that it becomes evidence that the court can use. There are similar forms in other provinces.

In the NC9 affidavit, you will explain how you knew the deceased and for how long you knew him or her before his/her death. You will say how you are familiar with his/her handwriting. For example, you might have written letters to each other, or you might have exchanged written recipes.

If you're having trouble finding samples of the deceased's handwriting or signature, get creative. Where would he or she have written something down? Did he or she have a bank account where he/she gave a sample signature? Can you find out about letters or cards he or she might have written to someone else? Did he/she sign things at work (invoices, letters, work orders) that you could use to compare?

If the holograph Will does have a witness, that is the best evidence of all, though it is rarely available.

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).

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.

Can a blind person sign a Will?

A Will has to be a written document, and a legally blind person would likely have difficulty reading it. This gives rise to the question of whether a blind person could legally make a Will. The answer is a resounding yes!

For the sake of restricting this discussion to the topic of making a Will despite blindness, I'm going to assume that we are talking about a person who is of legal age to make a Will and who has the required mental capacity to make a Will.

The key to making a Will for a blind person legal lies in the Affidavit of Witness to Will which is attached to the Will. Every Will needs one of these Affidavits, even when there are no unusual circumstances to consider. The Affidavit contains the evidence that all the formalities of witnessing and signing a Will were properly followed, and is sworn by one of the two witnesses who saw the Will being signed.

When there is an unusual situation, such as the Will being signed by someone who is blind and cannot read the document he or she is signing, the Affidavit will describe the unusual circumstances, and will also describe what was done to address those circumstances. In the case of a blind person, the Affidavit would have to say that the Will was read in full to the blind person, and that it was explained to him or her. It would also have to say that the blind person appeared to fully understand the Will.

This really isn't very different from the Affidavit that would form part of the Will of a sighted person, except that the Will has to be read to the blind person. Every Will, whether the testator is sighted or blind, has to be fully understood by the person who is signing it.

Obviously a blind person will want to work with a lawyer he or she trusts. A lawyer who is well-experienced in Wills and Estates law will ensure that the Will is properly drawn up, and that the Affidavit of Witness to Will is properly in place to support the Will.