We get a lot of questions about whether or not you have to visit a lawyer or notary to make your will legally-binding in Canada.
The short answer is, no! You do not need to have your last will and testament notarized for it to be legal. It is a common misconception that you need a lawyer or a notary to make a legally-valid will in Canada. However, this is not true. As long as you meet the requirements, your documents will be legally-binding.
That being said, there are a couple instances where you may need to include a notary.
What Makes My Will Legal?
First things first — while you don’t need a lawyer to make your will, there are some criteria you will need to meet when making your will. There are minor nuances between provinces but here are the general rules for your will to be legal in Canada:
- Outside of British Columbia, the will must be stored as a physical document (It must be printed and cannot be stored online)
- You must be of sound mind and over the age of majority in your province (If you’re under the required age, there are specific circumstances that allow you to make a legal will, like if you’re married, have children or are a member of the armed forces.)
- If the will is printed and typed (not written by hand), you must sign your will in the presence of two valid witnesses and they must sign to confirm they have witnessed your signature.
- The signatures must be in wet ink and at the very end of the will. (You cannot sign your will digitally at this time).
Affidavit Of Execution For A Will
An affidavit of execution is a document filled out by one (1) of your witnesses, which helps to confirm the validity of your will. An affidavit of execution does need to be notarized and is required if your estate has to go through probate.
An affidavit of execution is not required for your will to be legal. It can be completed when you execute your will, at a later date, or your executor can take care of it after you pass away. Many individuals choose to wait to complete this process if they expect to make updates to their will
You can find links to government affidavit forms by province here. If you make your will with Willful, we outline exactly how to do this on the instructions page included with your documents.
Why do people get an affidavit of execution notarized?
People choose to get an affidavit of execution notarized to relieve this task from their executor’s list after they pass away, speed up the process probate for their loved ones down the road, or don’t expect to make updates to their will (an updated version of the will would require a new affidavit of execution).
When their executor applies for probate, they can provide the court with the notarized affidavit of execution confirming the will’s validity. Without a notarized affidavit of execution, their executor would find at least one of the witnesses, who would complete it at that time. If both of your witnesses have passed away or are unreachable, your executor would have to show the courts they made a reasonable attempt to find them, and provide other evidence that helps to support the validity of the will.
Where Can I Find A Notary For My Affidavit of Execution ?
If you are making a will in Ontario, we’ve partnered with Notary Pro to help you easily get an affidavit of execution and POA documents notarized. You can view more details about our partnership with Notary Pro here.
If you’re in any other province, there is no national firm or chain of notaries - instead, you can Google “notary public + your city,” or you can reach out to our team at firstname.lastname@example.org and we’d be happy to share a list of notaries that are familiar with our documents.
How Much Does It Cost To Notarize A Will In Canada?
The cost of notarizing your estate planning documents can range from $15 up to about $50 per document. The final cost can depend on which document is being notarized, and whether you’re doing it virtually or in-person
Is It Legal To Notarize Documents Virtually In Canada?
Yes, under COVID-19 emergency orders, notaries can execute documents virtually.
Other Common Questions About Notarizing A Will In Canada?
What Does It Mean To Have A Document Notarized?
A notary affixes their stamp or seal to the document which indicates that the facts contained in the document are true. A notarized document has the same effect as swearing under oath in a court of law.
In the case of a will, an affidavit of execution is signed by a witness to verify that they were present for the signing and witnessing of the testator’s will, that the testator signed the document voluntarily and was of sound mind. This must be done in front of someone who is authorized by law to notarize documents. They will affix the stamp or seal to the affidavit of execution and attach the document to the will. The affidavit of execution is required as part of the probate process in all provinces except British Columbia.
How Do You Notarize An Affidavit Of Execution?
First, complete an affidavit of execution (it’s easier than you might think). Forms are widely available and often free. If you have a Willful will, we’ve included these instructions with documents.
We've gathered official government links (where applicable) and downloadable forms in our article about affidavits of execution.
Your witness will sign the affidavit swearing that it is true, and then it simply needs to be commissioned by an individual who is authorized to do so. We have a partnership with Notary Pro in BC and Ontario to help you get this done easily online, and we’re working on additional partnerships in other provinces.
When signing the document, the notary must:
- have a valid certificate of appointment
- handwrite their signature in ink
- apply a stamp or seal showing their full name as it appears on their certificate of appointment and the Canadian province or territory in which they have been appointed
- indicate the act they performed
- indicate the date they notarized the document
- indicate the date on which their appointment as a notary expires (if applicable)
Who Can Notarize A Document In Canada?
There are numerous professionals who can notarize documents in Canada, from doctors to lawyers to social workers to police officers - the list is quite long. Most of these professionals are only able to notarize documents that are within their scope of work. Rules governing who can notarize documents and what they can do vary by province and territory. Generally, an affidavit of execution can be notarized by a:
- Notary Public