WILLS & POWERS OF ATTORNEY
Please note that at Walk-In Notary we do not draft wills or powers of attorney, nor do we witness the signing of your wills. We only commission the Affidavit of Execution of your witness(s) and stamp the back of your original will as an exhibit to the Affidavit of Execution. We can also draft these affidavits for a fee, if you do not have them. For our notarization fees, please consult our fees page.
We receive many questions about how to notarize wills and powers of attorney. This is an important topic to many people. And unfortunately, it is a bit complicated. Therefore, we dedicated an entire page of our website to explaining the notarization process, as it relates to wills and powers of attorney, as clearly and as simply as we can. This having been said, please note, that just as with all the other content on our website, none of what follows constitutes legal advice. The purpose of this page is to inform, not advise. Legal advice is sometimes required dealing with wills and powers of attorney, and if that is the case, we strongly urge you to contact a lawyer.
Wills
A will is a document whereby a person, referred to as a testator, expresses his/her wishes for how they want their property to be distributed after their death.
When Walk-In Notary refers to wills and the methods of notarizing them, we are taking into account the legal customs and procedures of the province of Ontario. Will structures, witnessing and notarization requirements, legal consequences, etc. will vary from one place to another, even between provinces in the same country, and of course between country to country. As always, it is the client’s responsibility to determine the correct manner of drafting, executing and notarizing a will. If the client is unsure, it is best to seek advice from a lawyer.
The next sections discuss in detail how we approach wills.
Witnesses
Wills in Ontario have to be witnessed by at least two witnesses. It is best to find someone that knows the testator but does not stand to gain anything from the will. For example, a friend, a neighbour, a co-worker.
The following people cannot act as witnesses to the will:
- Beneficiaries to the will or their spouses
- Executors to the will
- The Notary that will be commissioning the affidavits to the will
- Our reception staff
- A person under 18 years of age
- A person whose property is under guardianship or has a guardian of the person
- A complete stranger that does not know the testator personally
Affidavits of Execution
It is highly recommended that wills contain affidavits of execution for at least one witness. In this context, an affidavit of execution is a statement from a witness, under oath, that they witnessed the testator sign the will. Affidavits of execution must be commissioned by a notary public. This is what we do. Furthermore, the affidavit of execution should make reference to the Will as an exhibit to the affidavit of execution. That means the notary will need to stamp and sign the back of the will with an exhibit stamp.
You can bring your own affidavits of execution for us to commission. Or we can draft them for you. We charge 69.99 to draft an affidavit of execution.
Timing of Witnessing and Notarization
Given all of the above, you might wonder about the order in which all this must take place. Does everyone have to be in the same room at the same time? There are two ways to do this.
1. Everyone signs everything at the same time
That is, everyone (i.e. the testator, the witnesses, and the Notary) are in the same room at the same time. The testator would sign the will first. The witnesses would sign the will second. Then the witnesses would sign the affidavit of execution. Then the notary will commission the affidavit and stamp the will as an exhibit to those affidavits. This method is the quickest, most efficient, and most common.
2. Presign the will but not the affidavits
Technically, the notary does not need to witness the testator sign the will. The notary only needs to witness the witnesses sign the affidavits of execution. That means that the will can be signed in advance, not in the notary’s presence, and at some later point the witnesses can attend the notary’s office with the affidavit of execution and the original will. There is no legal obstacle to doing this, however, note that there is a logistical obstacle. That is, in most cases it is the testator that pays the notary’s fee, which means that the testator will need to attend the notary’s office. Furthermore, the notary will need to stamp the back of the original will with an exhibit stamp, which means that the original will has to be brought to the notary’s office. That’s why we recommend method 1 over method 2.
Initials
Often, in order to be valid, each page of a will has to be initialled by the testator and the witnesses. This can cause some confusion, however, because some people think that the notary also needs to initial the will, when in fact, that is not the case. An initial on a page indicates that the person initialling has reviewed the contents of the page. Most notaries, including all of our Notaries at Walk-In Notary, do not review the contents of documents such as wills. Therefore, we cannot initial the pages. Our role is to commission affidavits of execution to a will and stamp the will with an exhibit stamp, as discussed above.
What to bring to our office
- The original will
- Witnesses
- Affidavits of execution if you have them; if you don’t, we can draft them. Do not pre-sign the affidavits of execution. The witnesses will need to sign in front of the notary.
Powers of Attorney
A power of attorney (POA) is a legal document that enables a person (referred to as the donor or grantor) to give power over property or health to another person (referred to as the donee, agent, or attorney). The donor can give away power over a specific property (such as a house, boat, car) or all property. The donor can also provide instructions on health-related matters in the event that the donor is incapacitated.
In Ontario it is common to have a POA for property and separate POA for health. Some people choose to have a lawyer draft the POAs, while others choose to draft it themselves, particularly if it is simple. You can download and fill out Ontario’s POA forms from the government of Ontario website. As always, if you have any questions, it is best to discuss it with a lawyer as they will be able to advise you regarding your goals and the contents of the document.
Timing of Witnessing and Notarization
Most POAs require at least two witnesses. This is true of Ontario POAs. The notary can be one of the witnesses. The second witness cannot be the donee. It is advisable that the donor, witness, sign the POA together in the same room, in the order listed.
Some POAs that are intended to be used outside of Ontario and/or for limited purposes do not require two witnesses. A notarization will suffice. However, this is something that should be determined prior to attending our offices. It is the client’s responsibility to determine this by contacting the recipient or relevant authority on the matter.
The following people cannot act as witnesses for a POA:
- The attorney (or the attorney’s spouse or partner);
- The grantor’s spouse or partner; the child of the grantor (or someone who is treated as their child);
- A person whose property is under guardianship or has a guardian of the person
- A person who is less than 18 years of age
Affidavits of Execution
Affidavits of execution are not as crucial for POAs as they are for wills, however, it is still a good idea to have at least one affidavit of execution for one of the witnesses.
Certified Copies
In some cases, a third party, such as a bank, might request that you provide a notarized copy of a will or POAs. In this case we would make a photocopy of an original will and/or POA and state on the photocopy that the copy is a true copy of the original which we have seen. Anyone can bring the original document for us to certify because we do not need to witness anyone’s signature.
Therefore, when someone asks you to provide a notarized will, ask for clarification. Ask: “Do you want me to have a notary witness the signature of the witnesses on an affidavit of execution or do you want me to have the notary make a copy of the original will and certify that the copy is a true copy of the original?”
Please note, that in the example above, the Notary will not know what the bank wants from you. You have to find out. At Walk-In Notary, we do not contact third parties (i.e. the recipient) on your behalf. And without communicating with the recipient there is no way to know exactly what they require. You can read more about our policies and requirements on our instructions page.
For information regarding the administration of wills, we recommend carefully reviewing Ontario’s website on this topic.
Definitions
Notary Public
What is it?
A Notary Public is a person authorized by the government to administer oaths and declarations. He/She verifies the identity of the signing parties and their signatures on the documents in question. The Notary witnesses all signatures, and signs and seals the document with an official seal of office. What is the difference between a notary public and lawyer?
In Broad Terms, An Ontario Notary Public Can Do The Following:
- Witness Someone Sign Something (E.g. An Affidavit Or A Letter).
- Make A Photocopy Of An Original Document And Certify That The Photocopy Is A True Copy Of The Original (E.g. A Diploma).This Is Referred To As A “Certified Copy” Or Sometimes “Notarized Copy”.
- Verify An Individual’s Identity (E.g. For The The Purpose Of Immigration Or Employment Documents).
Notaries Cannot Provide Legal Advice, Or Any Advice For That Matter That Can Be Construed As Legal Advice. We Can Notarize Your Documents On A Walk-in Basis. We Make The Process Simple And Quick For You. Why Wait Around For Inconvenient Appointment Times? With Us, In Just Minutes, Your Forms Can Be Properly Notarized. No Appointment Is Necessary.
Affidavit
What is it?
An affidavit is a written declaration of facts that is sworn by an “affiant” in front of a Notary Public or Commissioner of Oaths.
Why are they needed?
Evidence for court matters or other legal procedures often needs to come in the form of an affidavit. They are valuable because when someone swears an oath, or makes an affirmation, before a Notary Public it becomes a criminal offence to lie in the contents of the affidavit. Thus, third parties have an additional level of security when receiving information in this form. Further, A notary is required to verify the identity of the “affiant” before notarizing the document. In this way, the person receiving the document is assured that the paper was in fact signed by the correct person and not by an imposter.
We can notarize your affidavits quickly and easily. For a small additional fee, we can also draft affidavits for your convenience. This can be done on the spot – without further appointments being necessary. The whole process is quick and easy for you.