Last updated January 30, 2024
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What is an Affidavit of Execution?
An Affidavit of Execution is a document signed by one or more witnesses to verify that they witnessed someone else sign a legal document. Affidavits of Execution are commonly used to validate Wills and Powers of Attorney.
The goal of an Affidavit of Execution is to prevent forgery and confirm a signer’s identity. It further validates the signer’s intentions and proves they signed a document correctly with a witness.
An Affidavit of Execution is also known as an:
- Affidavit of witness
- Affidavit of attestation
How does an Affidavit of Execution work?
An Affidavit of Execution helps a signer validate their legal document by confirming that witnesses were present upon signing. Here’s a full breakdown of how an Affidavit of Execution works:
- A document owner has a legal document requiring one or more witness signatures.
- The document owner selects their witness(es) and sets a time to sign with them.
- The document owner and witness(es) sign the document.
- After the document is signed, the witnesses sign a single Affidavit of Execution with a notary public swearing that they saw the document owner sign the legal document on a specific date.
- The Affidavit of Execution is then attached or stored with the original document.
- When the original document is implemented (e.g., a Will goes through probate), the Affidavit of Execution helps to confirm its validity.
What is the purpose of an Affidavit of Execution?
An Affidavit of Execution has multiple purposes. Besides sometimes fulfilling a legal requirement, an Affidavit of Execution:
- Validates a legal document
- Prevents forgery
- Confirms the identity of the signer
- Confirms the document was signed legally
- Allows future legal actions to be executed a bit more easily
When is an Affidavit of Execution used?
An Affidavit of Execution can be used for many documents to validate the signer’s signature. These documents include:
1. Last Wills and Testaments
An Affidavit of Execution is not immediately needed when making a Last Will and Testament, but it helps to have one ready when a Last Will and Testament is put through probate.
Probate is the process of a court authenticating a Last Will and Testament once someone has passed to ensure that it’s valid. All provinces and territories require an Affidavit of Execution during probate except British Columbia.
An Affidavit of Execution proves that witnesses were present and the signer was of sound mind when they signed their Last Will and Testament.
2. Codicils
When someone uses a Codicil to change their Last Will and Testament, an Affidavit of Execution proves that witnesses were present during the amendments, validating the updates. As with Wills, using an Affidavit of Execution is usually required to validate a Codicil.
3. Power of Attorney
Having an Affidavit of Execution can ensure a Power of Attorney's validity.
Suppose a Power of Attorney isn’t notarized. In that case, an Affidavit of Execution helps to show that the witness was present and saw the creator willingly sign the document.
4. Living Will
A Living Will, also known as a Personal Directive, allows someone to give a family member or friend the authority to consent to medical treatments on their behalf.
With an Affidavit of Execution, peace of mind is given that wishes are followed through as outlined and that the document's signer made those decisions and signed with a sound mind.
5. Gift Deeds
A Gift Deed formally gives sums of money or transfers property ownership to another person or organization. An Affidavit of Execution can be beneficial to use should any questions come about a transfer that a donor has gifted.
For example, suppose someone gives a significant sum of money to a charity using a Gift Deed. Using an Affidavit of Execution to validate the Gift Deed confirms that the witnesses saw the donor sign the deed. If any questions or legal matters are brought up regarding the deed, the Affidavit can validate the donor’s wishes
6. Other documents
An Affidavit of Execution is not only for estate planning documents like Powers of Attorney, Wills, and Codicils. Many kinds of legal documents require a witness to be present upon signing. An Affidavit of Execution can also validate:
- Real estate documents: Some areas of Canada require buyers and sellers to have an Affidavit of Execution to help confirm a land transfer. For example, in British Columbia, land titles require an Affidavit of Execution if an original signature for a transfer has no witnesses.
- Divorce judgments: A joint divorce, not to be mistaken for an uncontested divorce, is when a couple works together to separate and end a marriage. Provinces like Alberta require an Affidavit of Execution in a joint divorce if the marriage occurred in the province. It verifies that a witness is present while the spouses sign the judgment.
Do I need an Affidavit of Execution now or later?
An Affidavit of Execution usually isn’t needed right away, but sometimes it is beneficial to have it sooner rather than later.
Take Wills, for example. If an Affidavit of Execution is left for later, the witness may move away or become deceased before the signer’s passing. Not having the original witness sign an Affidavit of Execution can create added costs and prolong the probate process for the Will’s executor.
Completing an Affidavit of Execution following the signing of a legal document requiring a witness is the best practice to be ready for future legal needs.
How do you write an Affidavit of Execution?
To create an Affidavit of Execution, you’ll need to provide the following information in our questionnaire:
- The name of the person who signed the original document
- The type of document the Affidavit of Execution is for (e.g., Power of Attorney, Will, Gift Deed, etc.)
- The names and addresses of all the witnesses
- The signing date
- Whether the Affidavit of Execution will be notarized by a commissioner or a notary public
- The city or town and province where the Affidavit of Execution will be signed
Does an Affidavit of Execution need to be notarized?
Yes, an Affidavit of Execution must be notarized by a notary public or a commissioner of oath to be valid.
Notary publics and commissioners of oath can be found through local directories. Also, consider using an online notary service.
