When it comes to estate planning in Ontario, the line between a notary public and a lawyer often gets blurred. Many people search for 'how to notarize a will' only to discover that the process isn't about stamping the will itself, but proving its validity for the future. While a non-lawyer notary cannot draft a will or give legal advice, they play a critical role in the final step: commissioning the Affidavit of Execution (Form 74.8). Without this crucial document, your executor could face costly delays during probate.
Here is exactly how the roles break down so you can ensure your final wishes are legally secure.
1. Can a Notary Draft a Will in Ontario?
Unless a notary is also a licensed lawyer, their role in will preparation is strictly administrative. In Ontario, drafting a will or providing legal advice is considered the practice of law.
- Rule: Only lawyers or paralegals can draft wills or provide legal advice in Ontario.
- Exception: Lawyers who are also notaries can both draft a will and notarize the associated affidavits.
- Risk: Using a non-lawyer to draft a will or relying on an online template without guidance increases the risk of technical errors that could lead to an invalid will or expensive litigation.
2. Do You Require a Notary to Witness a Will in Ontario?
Properly witnessing a will is vital for its validity. A notary can act as a witness, but they must follow specific Ontario requirements:
- The "Two-Witness" Rule: You must sign your will in the presence of two witnesses who are both present at the same time.
- Conflicts of Interest: Witnesses cannot be beneficiaries or the spouses of beneficiaries.
- Virtual Witnessing: While you can sign a will via video call, Ontario law requires that at least one witness be a licensed lawyer or paralegal. A non-lawyer notary is not sufficient for remote signing.
3. The Affidavit of Execution: Why You Need Form 74.8
The most critical role of a notary occurs after the will is signed. This is the creation of the Affidavit of Execution (Form 74.8).
- What it is: One of your witnesses swears an oath before a Notary Public or Commissioner for Taking Affidavits, confirming they saw you sign the will.
- The Probate Connection: While a will might be valid without this affidavit, it is almost impossible to probate a will in Ontario without it.
- The Benefit: Having this notarized immediately after signing prevents your executor from having to track down witnesses decades later, which is often difficult or impossible.
4. Do You Need a Notary to Certify True Copies of a Will?
A Certified True Copy is a duplicate verified by a notary to be an exact match of the original. This is commonly used for:
- Banking & Insurance: Financial institutions often require a notarized copy to begin processing estate claims.
- Foreign Assets: If you own property outside of Canada, foreign jurisdictions often require a "certified and apostilled" copy of your Ontario will.
- Security: It allows you to keep the original document in a fireproof vault or with a lawyer while using the copy for administrative tasks.
Important Limitation: A certified copy is not a replacement for the original. If the original is lost, the court assumes it was revoked, and a complex "proving a lost will" application is required.
Comparison: Lawyer-Notary vs. Non-Lawyer Notary
| Action | Notary Public (Lawyer) | Notary Public (Non-Lawyer) |
| Draft the Will | Yes, can provide legal advice. | No, cannot provide legal advice. |
| Witness the Will | Yes, can also witness the execution of a will remotely. | Yes, but only in-person witnessing unless the other witness is a lawyer or paralegal. |
| Draft & Notarize Affidavit of Execution | Yes. | Yes. |
| Probate Representation | Yes. | No. |
Need Help? NotaryServe® Can Assist
Our notaries are licensed lawyers. NotaryServe® can help ensure your will meets legal requirements. A letter of engagement and certain steps may be required to comply with the Law Society of Ontario’s Rules of Professional Conduct.
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📞 Phone: 613-558-5363
📧 Email: contact@notaryserve.ca
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This post is for general information only and is not legal advice. For advice speciific to your situation, please contact a lawyer.
