What Is an Affidavit of Execution and Why You Want One

A 71-year-old executor in St. Catharines applies for probate of her late father's 1993 will. The application sits on the registrar's desk for six weeks before being returned with a single requisition: no affidavit of execution attached. Neither witness's name appears on any current Canadian address record; both have presumably died or moved. The executor spends roughly four months and $4,200 in legal fees on an application to prove the will in solemn form before probate is finally granted.

The will was valid. The witnessing was almost certainly proper. The procedural piece that was missing — a single sworn affidavit signed at the time of execution — would have prevented every dollar and every week of that delay.

This article is the plain-English explanation of what an affidavit of execution is, why every Canadian will should have one, and what happens at probate when one is missing.

What an affidavit of execution actually is #

An affidavit of execution is a sworn statement by one of the two witnesses to your will. The witness swears, in writing and under oath, that:

• They saw the testator sign the will (or acknowledge their signature already on the document)
• The testator appeared to be of sound mind at the time
• The other witness was also present and signed in their presence
• The witnesses signed in each other's presence
• The will attached as an exhibit is the same will the witness saw signed

The form is short — typically one or two pages — and is sworn before a commissioner of oaths, lawyer, or notary public. The original will is usually attached as an exhibit and marked by the commissioner taking the oath.

In Ontario the form is prescribed as Form 74.8 under the Rules of Civil Procedure.^[1] Other Canadian provinces use their own equivalent forms — BC's probate affidavit forms appear under the Supreme Court Civil Rules (Part 25 — Estates); Alberta uses its Surrogate Rules forms; the Maritime provinces and Prairie provinces each have their own. The substance is essentially the same across the country.

Why it matters at probate #

The Canadian probate court process is designed to confirm that the will being submitted was properly executed and is the testator's last valid will. The court is not personally familiar with the testator, the witnesses, or the signing ceremony. It needs evidence.

The affidavit of execution is the evidence. With it attached to the will, the probate registrar generally accepts the will as properly executed and moves forward with the application. Without it, the registrar typically requires further evidence — usually one of the original witnesses being tracked down to swear an affidavit at that point.

The problem is timing. A will is often signed when the testator is in their 50s or 60s and probated when the testator is in their 80s or 90s. Twenty to thirty years pass between signing and probate. The witnesses, who were typically about the testator's age, are often dead, incapacitated, or untraceable by the time their evidence is needed. The affidavit of execution, sworn at the time of signing, captures the witness's evidence while the witness is alive and findable.

What happens if there is no affidavit #

When the will arrives at the probate registry without an affidavit, the executor (or their lawyer) generally has three options, in increasing order of difficulty:

Option 1: Find a witness and have them swear an affidavit now. If one of the original witnesses is still alive, locatable, and competent, they can swear an affidavit of execution after the fact. The form is the same as it would have been at the time of signing. This is workable but adds time and expense.

Option 2: Provide alternative affidavit evidence. If no witness can be found but someone is familiar with the testator's signature (a long-time bank manager, a family member, the testator's lawyer), they can sometimes swear an affidavit attesting to the signature's authenticity. This is a weaker form of evidence and the court may or may not accept it.

Option 3: Apply to prove the will in solemn form. A formal court application to prove the will, typically requiring evidence on affidavit or in person from anyone with relevant knowledge. This is the expensive route — generally $3,000 to $10,000 in legal fees and three to twelve months of delay — and is reserved for cases where the first two options are unavailable.

The cost of preventing all three is essentially zero: have the witness swear the affidavit at the time of signing. Most lawyers include it in the will-execution appointment without separately billing for it; some banks and credit unions have a commissioner on staff who may take the affidavit at no charge; notaries typically charge $20 to $50 for the service.

When to take the affidavit #

The cleanest practice is to take the affidavit on the same day the will is signed. Both witnesses are present, the events are fresh, the will is ready to be marked as an exhibit. Many lawyers prepare the affidavit form alongside the will, sign the will with the testator and witnesses, then have one of the witnesses immediately swear the affidavit before the lawyer (who is a commissioner of oaths in Ontario by virtue of being a lawyer).

Where the will is signed without a commissioner present — for example, a kitchen-table signing using an online will service's witness instructions — the affidavit can be sworn at a later visit to a notary or commissioner. The witness brings the original will and government-issued photo ID; the notary commissions the affidavit and marks the will as the exhibit.

The trap is delay. The longer the affidavit is left undone, the higher the chance that the witness becomes unavailable. A will signed in 1990 with the affidavit left for "later" is a will likely heading for option 3 above when probate is eventually applied for.

Remote and electronic execution #

Several Canadian provinces enacted temporary or permanent rules during the COVID-19 period allowing remote witnessing of wills and remote commissioning of affidavits, typically via secure video link. Ontario's O. Reg. 431/20 made remote commissioning of affidavits permanent, with specific procedural safeguards.^[5]

Remote witnessing of wills themselves is a more complex topic — some provinces accept it under specific protocols, some require physical presence, and the rules have shifted over time. See our separate guide on electronic wills in Canada for the current province-by-province picture.

For affidavits of execution specifically, remote commissioning is now widely accepted across Canadian provinces when properly conducted. The practical effect is that an out-of-province witness can swear an affidavit by video appointment with a commissioner without the witness having to travel to the lawyer's office.

What the affidavit does not do #

A few common misconceptions to clear up.

The affidavit does not make an otherwise invalid will valid. If the will fails the underlying execution formalities — wrong number of witnesses, witness who was a beneficiary, missing testator signature — the affidavit cannot rescue it. The affidavit is evidence of compliance, not a cure for non-compliance.

The affidavit does not authenticate the will against later challenges to capacity or undue influence. A will challenger can still allege that the testator lacked capacity or was under undue influence even if a proper affidavit of execution is on file. The affidavit confirms the formal signing; it does not vouch for the substantive validity of the testator's decision.

The affidavit does not need to be re-sworn when the testator makes a codicil. The codicil generally needs its own affidavit of execution (typically using a parallel form — Ontario's Form 74.8 covers both wills and codicils).^[1]

Province-by-province pattern #

The exact form, procedural rules, and accepted commissioner roles vary by province. The summary pattern:

Every common-law Canadian province has an equivalent procedure. The names and form numbers differ; the underlying function is consistent: a sworn witness statement confirming proper execution, attached to the will at probate.

What we focus on at It's Simple Will #

The It's Simple Will questionnaire generates an affidavit of execution form alongside the will itself, with province-specific wording and clear instructions on how to have it commissioned. We recommend completing the affidavit at the same appointment as the will signing, but also support deferred execution where the user prefers to handle the commissioning separately.

The framing that lands with most users: the affidavit is the cheapest insurance policy in the will-execution process. The cost is minutes of additional time and at most a $50 notary fee; the benefit is preventing your executor from spending thousands of dollars and months of delay tracking down witnesses who may no longer exist.

Related reading: how to sign your will in Canada, witnessing a will in Canada, and our pillar on how to write a will in Canada.