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Monday, July 5, 2010

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).

41 comments:

  1. Can the brother-in-law of the lawyer who drafted the will, sign as a witness.

    ReplyDelete
    Replies
    1. Yes. The relationships that matter in terms of witnessing are those of the testator, not the lawyer.

      Lynne

      Delete
  2. Can my brother and his wife sign as witnesses on my will?

    ReplyDelete
    Replies
    1. Yes, they can, as long as neither of them is ever going to be a beneficiary of your will. If they are, then the witnessing will be valid, but they will never receive their inheritance under the will.

      Lynne

      Delete
  3. In this article you say " To be fair, I have once or twice seen lawyers make mistakes with witnessing too!" What can be done if this happens? In our case my Grandmother has passed away and now we have found out that her lawyer allowed my aunt (a named beneficiary of the will) to act as a witness.If it is known by all of the beneficiaries that the lawyer made a mistake by allowing a named beneficiary of the will act as a witness is there a way to allow my aunt to have what she should be inheriting?

    ReplyDelete
    Replies
    1. There are two possibilities. One is that the beneficiaries get together and agree that each will give up a bit of his or her share to the aunt.

      The other is that the aunt sues the lawyer who drafted the will for the loss she suffered due to his or her mistake. Cases have held lawyers liable for mistakes like that.

      Lynne

      Delete
  4. Does a codicil need to be a registered attachment to a registered notarial will?

    ReplyDelete
    Replies
    1. A codicil is intended to be a part of the will, therefore if a will is listed in a registry, it only makes sense to list the codicil as well. And they should physically be stored together as well.

      Lynne

      Delete
  5. can a lawyer have his secretary sign as a witness

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  6. Can a friend of a "Releasee" be a witness on a "Release Letter" signed by a "Releasor"

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  7. Can the notary public notarizing the self proving affidavit and his secretary be the witnesses to the will?

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  8. " 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." Why is that?

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  9. Can my sister and her husband sign as witnesses even though they live in the UK.

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  10. I'm going to move near my children and woman I live with is going in a home. I have a homemade will that is witnessed by 2 people and I left everything to my biological children. Can the person I lived with contest the will even though she is ill and going in a home.

    ReplyDelete
    Replies
    1. Being ill and going to a home is not a reason to lose an inheritance so I honestly don't know what that has to do with anything.

      The rights of the person you live with depend on a number of things, the first of which is the province you live in. Most but not all recognize common law rights of inheritance so the person you lived with would have a right to contest your will.

      If your point is that she won't contest because she is too sick, you should realize that a person can act for her. For example, if she had a guardian or a power of attorney, that person could conduct the lawsuit for her.

      Lynne

      Delete
  11. Can wife of the executor be a witness, too? Executor is brother of the testator, and not a beneficiary of the will, i.e. neither executor and the wife. But executor will have the funds in Trust.

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  12. My aunt asked my parents to sign her will,as her witnesses. She told them that she was writing this will without her husband knowing. Are you allowed to do that?

    ReplyDelete
    Replies
    1. Yes, you are allowed to do that.

      I know you didn't ask this, but if your aunt left anything to your parents, and they are the witnesses, the gift to them will be void.

      Lynne

      Delete
  13. Hi Lynne. My father in law met a woman while he was fighting many illnesses. Before she moved in and before they got married he made her get a loan to pay off her debts as she lived off credid cards. He also got a prenub drawn up stating if she was to leave him she would get nothing but if she stayed until he died she would receive the furniture and a 1/3 of the value of his house.His children and grandchildren were to split the rest. He always made sure to give us a copy of his latest will along with a list of his current possessions for example... a 10 page duotang listing off all his tools and their serial numbers and told us to get a lawyer if something doesn't seem right.Unfortunately this last will we had a copy of was not properly executed as there is only one witness.here's the situation.... He recently died and his wife of 3 years presented us with a new will that is written entirely in her own hand writing appointing her as executrix as well as full beneficiary. No mention about his children or grandchildren at all, which i'm aware can be fought through the wills and variation act.On these pages appointing her as executrix and full beneficiary neither of the witnesses initialed anywhere on the page.It was a do it yourself will kit with 4 pages in total. My father in law's initials are not consistent wit his writing either. She told us she needed time to grieve and promised us she wasn't going to do anything and we have her recorded admitting she knew she had to probate because absolutely nothing was in joint names with her. She told us she would be in touch. Well about 2 weeks goes by and nothing. Then we try to call and no answer. Then her son calls us and says she no longer wants to communicate with us. Thats when we found out she sold all of his assets including ones her husband wanted his grandson to have. She didn't apply for probate giving us a chance to send her a notice of dispute before she flogged it all. she sold about $65,000 worth of assets for half their market value. Luckily we froze his bank accounts shortly after we found out she was using his debit card too. (he kept all of his accounts separate from her) My father in law had lung cancer, cirrhosis of the liver and a frontal lobe brain injury.He took over 11 meds at the time the will was made and majority of them have cognitive effects. We are fighting her as her actions have been spiteful and her errors were deliberate. She has done everything a trusted executor should not do. She knew him for 3.5 years and my husband (his son) was his best friend for 34.The laws arent strict enough and dont always protect the innocent.She waived her fake will and managed to sell 2 Harleys, a boat, a truck, atv, and several thousands of dollars worth of wood working tools. Now we have nothing that was his to have as a keepsake in the family. It hasn't been easy for us kids to let that go and just focus on the dollar value of them. They meant more to us than that! My questions are Is the will valid if the witnesses do not initial every page? Is it not fraud that she used his bank card especially after his passing when she wasn't even on the account? And is it against the law the sell assets in an estate without probate if they are not in joint names? Thanks Lynne

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  14. Do the testator and the witnesses must all sign the affidavit in front of a notary public?

    ReplyDelete
    Replies
    1. If you're in Quebec, most wills are done by notaries public, so they would take care of the signing and witnessing. In any other province or territory, there is generally no involvement by a notary.

      Lynne

      Delete
  15. Hi there

    My nan recently passed. She has a will signed by two witnesses. One is a lawyer who is now deceased. I was told by the bank while trying to settle her estate that I have to have her Will notarized stating it is her last will of testament. Do I need a lawyer to do this?

    Mar

    ReplyDelete
    Replies
    1. Hi Mar,
      At first I thought you must be trying to get the affidavit from the witness so that you can apply for probate of the will. Then you said that you are following instructions from the bank, which makes me think you're not actually applying for probate but dealing directly with the bank only. Perhaps you could clear that up for me so that I can give a proper answer.

      Lynne

      Delete
  16. Hello, though I would be leaving all assets to my Wife, as stated in a simple last will that I prepared, would my children still receive the monies that they are entitled to, as beneficiaries of a life insurance policy?

    Thank you

    ReplyDelete
    Replies
    1. Yes, they would. Your life insurance policy proceeds are not part of your estate so they are not controlled by your will. Since you said your will is simple, it probably doesn't even mention life insurance so there is little chance that you have accidentally changed the beneficiary through your will.

      Lynne

      Delete
  17. What is the effect to a beneficiary's right to claim a bequest if he or she subsequently marries a witness to the Will who was not a spouse or common law spouse of a beneficiary at the time of the execution of the Will?

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  18. The article states "Later, one of the witnesses must sign an Affidavit stating that all of the proper formalities of Will signing were followed." Is this correct for Alberta? Does this affidavit need to be completed by a lawyer or Commissioner for Oaths?

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    Replies
    1. Yes, it is true of Alberta. However, in Alberta, the affidavit (Affidavit of Witness to Will) is often done at the same time as the will is signed. An affidavit is a document that must be sworn in front of a Commissioner for Oaths or Notary Public, so yes, you are going to have to use someone to do that. It could be a lawyer, but others are Commissioners for Oaths too, such as clerks of the court, legal assistants, justices of the peace, etc.

      Lynne

      Delete
  19. You may have answered this but I wanted to make sure... Does a notary have to natorize my will in ontario or is it sufficient that I have witnesses that are not beneficiaries?

    ReplyDelete
    Replies
    1. No, you do not have to get your will notarized. That adds nothing at all to the validity of the document.

      Lynne

      Delete
  20. I'm going to be in my brother will he's separated and health issues can I be the executor of the will if I am the one who will be named in the will and only me

    ReplyDelete
  21. I want to know can I be the executor of the will if I am the one who will be named in the will and only me

    ReplyDelete
    Replies
    1. You asked your question twice and both times you referred to yourself as "the one who will be named". I'm guessing that by that you mean that you'll be the beneficiary. If that is in fact what you mean, then yes, you can be the executor.

      Lynne

      Delete
  22. If I have a lawyer draft the will, can that lawyer also sign as one of the witnesses?

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    Replies
    1. Hi Jerry,
      Absolutely, yes. In fact, this is standard practice.

      Lynne

      Delete
  23. I am living in Manitoba. Is it OK to sign and get my Will witnessed in a different province (Alberta)?

    ReplyDelete
  24. Hi Lynn,

    I'm hoping you can help me out. When my husband became ill his brother helped us out by avcessing an online template for a will. It is a simple will naming me as the benficiary as well as exevutor. My brother-in-law and his wife signed it.
    The will was approved my the funeral home and they took a copy of it.
    When I took the will to the bank, upon my husband's passing they froze his bank account and asked for the will to be notorized. At this time I have made an appointment for a lawyer next week but my question is this...In Ontario who can notorize a will legally? Does it have to be a lawyer? Can the bank freeze the account considering I am the executor on the will? Can my brother-in-law who had financial power of attourney access the account now that my husband has passed? I have no way to pay the bills from his account and I've had no income for a few weeks.
    Thank you for your help in advance.
    Jo-Anne

    ReplyDelete
    Replies
    1. I don't know what on earth that bank is thinking. Notarizing a will? That won't mean a thing. It won't give them any kind of protection or added security. Asking you to do that is a complete crock.

      Any notary public can notarize a will. Not all notaries are lawyers, though most are. The fact that notaries don't have to be lawyers is one of the reasons that notarizing it does squat.

      There are often problems with home-made wills, so I'm not surprised that the bank is being cautious, but telling you to get it notarized is idiotic. If they wanted a legal opinion on its validity or they wanted it to go to probate, I could understand those requirements because they would protect the bank.

      I would take this complaint higher. The person you talked to knows nothing. If you are not already dealing with the branch manager, start there.

      Your other possibility is to get the will through probate, if that can be done quickly. Even the bank can't argue with probate.

      In the meantime, there are some bills that can be paid directly from your husband's bank account. The funeral bill is one.

      Unfortunately, the power of attorney cannot be used because that document became void as soon as your husband passed away.

      This situation really irritates me, as they are putting you through all kinds of anxiety and problems without them even understanding what they are asking you to do. Tell them from me to give their staff some more training!

      Lynne

      Delete
  25. My father-in-law, an expat in the U.S. only left one will which. In it, he is the only one that initialed each page. The witnesses signed the final page and a codicile. Is this still legal in Ontario

    ReplyDelete

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