When an application for a certificate of appointment of estate trustee with a Will (probate of a Will) is filed in Ontario the applicant must file proof that the signature on the Will is the valid signature of the deceased testator.
The most common means of proof is via an ‘affidavit of execution’ of the Will.
An affidavit is a sworn statement, ‘commissioned’ by a commissioner for oaths (notary public, lawyer, or individual who has been designated a commissioner).
An affidavit of execution of a Will must be sworn by one of the two witnesses to the signing of the will by the testator. They must swear that they were present and observed the testator sign the Will.
Usually, the affidavit of execution should be sworn at the same time as the Will is signed by the testator – otherwise, someone has to try to track down the witnesses years after the fact. However, it can be sworn after the fact, and if the Will is signed when no lawyer/notary/commissioner is present one of the witnesses can swear the affidavit of execution as soon as practicable later.
The original Will must be ‘an exhibit to the Affidavit’. This is done by stamping the back of the last page of the Will and identifying the Will as an exhibit to the affidavit of execution. The Will is then usually attached (stapled) to the affidavit of execution.
If there is no affidavit of execution and no witnesses to the Will can be located to create one (which is common for holograph wills as there are often no witnesses at all) all is not lost, but more effort is required. For a holograph Will, an affidavit will be required from someone who knew the testator well and knew their handwriting and signature and is thus is able to attest to the Will and the testator’s signature on the Will. For a type-written Will, an affidavit will be required that details the unsuccessful search that was carried out to locate the two witnesses to the Will, and an affidavit will be required from someone familiar with the signature of the testator (such as an employer or bank official) who has a signature on file that they can compare with the signature on the Will.