What is a witness?
A witness in terms of creating a will is a person who participates in validating the will document. A witness is needed to confirm that the testator has indeed signed their own documents. The witness will confirm this by signing the documents as well to make them a legal document.
When and why do I need to name a witness?
Once you have drafted your will and it accurately reflects your wishes, it’s time to make it a legal document. This is when you will need two qualifying witnesses.
Think about two people who are accessible to you, such as a neighbour a colleague or a family member that lives nearby. You will need to let your witnesses know in advance, so you can organize an appropriate time to get together and sign the will (note that due to COVID-19, several provinces have allowed for virtual witnessing of wills).
Having two witnesses is required for the legal validity of your written will using Willful. If the validity of your will or your signature come into question, these individuals may have to testify in court to confirm their presence at the time of signing the document.
How many witnesses do I need?
To make your will a legal document, you must sign it in the presence of at least two witnesses and the two witnesses must also sign the will in the presence of you (the testator).
Who can act as a witness when I sign my will?
Your witnesses could be any two adults; friends, neighbours or co-workers. The witness cannot be a beneficiary of the will, the spouse of a beneficiary at the time of signing, or a minor. Each witness must be at least the age of majority and mentally sound. It’s important to remember that your witnesses are not required to read the will or know its contents.
Can my witnesses digitally sign my will?
Grab a pen! In Canada, digitally-signed wills are not currently recognized as valid. To maximize the likelihood that your requests are met, you will need a will that is physically printed and signed by you and your witnesses in ink— sometimes referred to as a wet signature.
What Is The Signing Process?
Using Willful, once you are ready to print out all of the documents, read them over thoroughly and review the easy-to-follow instructions page that comes with each document.
Make sure you understand everything contained in the will before signing. If there is anything that does not reflect your wishes or you wish to update/edit a will made with Willful, you can go back to your dashboard and make your desired changes. Print the version that best reflects your wishes and destroy other copies to avoid confusion.
Once you’ve chosen and informed your witnesses, organize everyone on a predetermined date and time so that everyone can be present for the signing.
Starting with the testator and followed by each witness, each person should initial each page in the designated spot. This also prevents any altering of the will after it’s been signed.
In front of your two witnesses, on the last page of the will, you should sign your full name. Everyone involved must stay present until you have finished signing. However, the one witness doesn’t need to be present while the other witness signs, although you, the testator, do. Sequence matters, and the testator must sign in the presence of the witnesses who are present at the same time before the signature of either of the witnesses.
Make sure there is only one original copy of the will. It’s okay to create copies, but it’s important to know which is the original; therefore we recommend signing in blue ink.
Do not sign a second will or any of the photocopies as it will be difficult to distinguish from the original will.
And that’s it! After the printed document is signed and witnessed, it becomes your legal last will and testament. The most recent wet-signed documents will be considered your official legal documents.
We recommend customers of Willful destroy/shred past versions of your last will and testament (and other outdated estate planning documents) and follow the same process with two witnesses for every version you wish to make legal.
Store in a safe place, let the people you trust know where it is stored and carry on with peace of mind knowing your will has been created. Review and update as necessary.
Will my witnesses be required in future?
If your will is required to go through probate (which most are), in all provinces except BC one of your witnesses will need to provide a sworn affidavit of execution attesting to the fact that they were witness to the creation of your will. You can complete this at the time you execute your will, or a witness can provide it at the time of your passing. If you did not complete one before you pass away, your witness would be required to provide one at the time of your passing. If your executor cannot find a witness, or they’ve passed away, they would be required to provide evidence of the search for the witnesses, and they would be required to provide other evidence of the validity of the will.
Your witnesses may also be called before the courts if the validity of the will is called into question, or if there are claims against the estate.