How to Probate a Will with No Affidavit of Execution
Section 4 of the Succession Law Reform Act provides that for a will to be valid, it must be signed in the presence of at least two witnesses and that those witnesses must witness the will in front of the testator. What is sometimes forgotten (or just not known) is that in order to obtain a certificate of appointment of estate trustee with a will, the executors are required to prove that the will was duly executed.
Rule 74.04(1)(c) of the Rules of Civil Procedure (“the Rules”) provides that when applying to probate a will, the executors must submit an affidavit of execution of the will (and of every codicil, where applicable) or, when one does not exist and neither witness can be found, provide “such other evidence of due execution as the court may require.”
Things are easiest where an affidavit of execution (in which a witness swears that he or she was present when the testator signed his will) exists. An affidavit of execution should be in Form 74.8 of the Rules (and note that the affidavit must be commissioned by a commissioner of oaths).
In situations where no affidavit of execution can be found at the testator’s death, then attempts should be made to locate one of the witnesses to the will so that an affidavit of execution can be sworn. Sometimes, however, the witnesses have died or cannot otherwise be located. In this situation, the executors will need to find another method of establishing that the will was duly executed.
The easiest way to do this is to contact the financial institutions where the deceased held assets. Usually, when opening an account, an individual is required to fill out a signature card. Where this has occurred, the bank manager (or other authorized officer) should be asked to swear an affidavit stating that he or she has compared the signature on the will with the signature on record with the bank and, accordingly, believes the signature on the will is that of the deceased. Generally, the court will grant probate on this basis.