There are several key elements of a properly drafted Will and several key moments in the process. Signing is, to put it lightly, a rigamarole. It is a challenge to plan, complex to manage and requires supervision to pull off properly. It may not be a free trade agreement or piece of government legislation but it no less of a ceremony or ritual.
Two witnesses must witness the Testator’s (the person whose Will it is) signature. They must be in the room together at the same time and for the duration of the signing. This is harder than it sounds. A witness who steps out of the room to take a quick phone call or reply to a text compromises the days and weeks of work that has gone into preparing for this moment.
And then there’s the paperwork. Typically a client is obtaining not just a Will but also two Powers of Attorney, one for Property and one for Personal Care. So that is three documents signed by the Testator, each requiring two witnesses, meaning nine signatures in all. Individual pages of each document that are not the signing page also must be initialed. Witnesses should then swear affidavits attesting that they did indeed sign and in the presence of each other. To swear an affidavit requires a Commissioner for Oaths, a Notary, or a lawyer. So that is two affidavits for each of the three main documents, adding six documents and signatures. So we are now at 15 signatures. Add to that, the signature of the Commissioner on the affidavits and that is another six signatures. All together that’s twenty-one signatures. Preparing the paperwork, the original three documents (Will and two POAs) and the six affidavits and keeping them order as they are being signed is challenging, and once they are signed they need to be copied at least twice, once for the client to give to his/her Executor and once for the file.
Eighteen documents. Twenty-one signatures. Thirty-six copies. No surprise that so few people complete those self-help wills kits.
“[I]t would appear that no matter how explicit and clear are the instructions of the unsupervised execution of the Will by a client without legal assistance, the formalities attendant upon the legal and proper execution of a Will as provided by the statute are sufficiently complex that a client not legally trained should not be trusted to undertake this ceremony alone. I use the word ‘ceremony’ advisedly as the process of execution of Will involves at least three participants, with a prescribed ritual of which all solicitors are familiar.” – Rodney Hull, Q.C., Law Society of Upper Canada continuing legal education program materials, 2014
