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ALBERTA – PROBATE – AFFIDAVIT OF SIGNATURE TO A WILL

For a Will to be probated in Alberta, one of the required documents in the application is Form NC8, the Affidavit Of Witness To A Will. An example of this form is included in Schedule 3 of the Surrogate Rules.

http://www.qp.alberta.ca/documents/Regs/1995_130.pdf

This is proof to the court that the Will was properly executed by the testator in the presence of two witnesses. One of the witnesses will swear this Affidavit before a Commissioner for Oaths or Notary Public. In addition, the back of the Will has to be marked as an Exhibit to the Affidavit.

Our practice is to prepare and execute the NC8 and Exhibit at the same time the Will is signed. It can be difficult to track down the witnesses to the Will to sign the NC8 if the testator dies many years after the date of the Will. Codicils to a Will also require the NC8 to be completed.

In the future event that the witnesses to the Will are dead or cannot be located, and no NC8 was created, the alternative form to submit is the NC9, the Affidavit Of Handwriting Of The Deceased. Someone who was well known to the testator can swear this Affidavit that the signature of the testator is authentic. It is preferable that this person not be a spouse or beneficiary of the testator. The NC9 must also be sworn before a Commissioner for Oaths or Notary Public.

Exceptions to the requirement of an NC 8 are holograph wills (written entirely by hand by the testator) and military wills (made by a member of the Canadian Forces on active service or marine voyage). Sections 16 and 17 of the Wills And Succession Act, provide that signatures of witnesses are not required in these specific instances. The NC9 would suffice instead.

http://www.qp.alberta.ca/documents/Acts/W12P2.pdf

Please contact us if you have any questions about Wills and Probate.