NC 8 Form Explained

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NC 8 Form: Affidavit of Witness to a Will

An entire article about a specific type of affidavit might seem like overkill, however, the “Affidavit of Witness to a Will”, or “NC 8 Form” is an important touchstone of Wills & Estates law in Alberta.

Read our article on Surrogate NC Forms here

An Affidavit of Witness to a Will is essential to both proper Estate Planning and to effective Estate Administration.

In this article, you’ll discover what an Affidavit of Witness to a Will or NC 8 form is, why it’s so important, and why some people, including lawyers, neglect to include it in their Wills.

What’s an NC 8 Form?

When someone passes away in Alberta, oftentimes the deceased’s Executor has to apply for a Grant of Probate or a Grant of Administration. Both grants require an Affidavit of Witness to a Will in form ‘NC 8’. NC 8 is simply a code that the Alberta courts give to the Affidavit of Witness to a Will, although, if the Affidavit of Witness to a Will is not in the same format as the court form NC 8, it won’t be accepted by the courts.

What’s an Affidavit?

If you’ve watched any sort of TV show that features lawyers or law enforcement personnel, such as a legal drama or crime investigation show, you’ve likely heard the term ‘affidavit’ used. If you’re unsure of what an affidavit is, the definition is actually quite simple.

An affidavit is a written statement in which a person (typically called a deponent) swears under oath to be true before a person who is authorized by law to take oaths. In Alberta, an affidavit can be ‘solemnly affirmed and declared’ instead of ‘sworn under oath’ as a matter of preference or for reasons of conscience. The deponent signs their name below the written statement to affirm the truth of said statement.

The law in Alberta grants both Commissioners for Oaths and Notaries Public the authority to administer affidavits. There are also other narrow categories of individuals who may administer affidavits by virtue of their office. All practicing Alberta lawyers in good-standing are also Commissioners for Oaths and Notaries Public.

Does a Will Need a Witness in Alberta?

In order for a Will to be valid in Alberta, it must be signed by two witnesses who are present together in the room with the testator (will-maker) when the testator signs the Will.

There are a few narrow exceptions to the general requirement that a Will must have two witnesses. The most common exception to the two-witness rule attaches to what’s called a ‘Holograph Will’. A holograph Will must be handwritten in the testator’s own handwriting. Holograph Wills are actually invalid if they are signed by a witness, or if any witness is present in the room when the Will is signed. If you’d like more information on holograph Wills, click here.

What’s an Affidavit of Witness to a Will?

An Affidavit of Witness to a Will is an affidavit, usually attached to the back of the Will, that is sworn by one of the two witnesses to the Will. It doesn’t matter which of the two witnesses signs the Affidavit, although it’s important that the witnesses to the Will are not relatives of the will-maker or otherwise named in the Will.
What Does an Affidavit of Witness to a Will Include?

Typically, an Affidavit of Witness to a Will in Alberta includes the following:

  • The testator’s name;
  • The deponent’s name (i.e. the name of one of the witnesses to the Will);
  • The date of the original Will;
  • A statement confirming that the deponent is one of the witnesses to the Will;
  • A statement confirming that the Will is Exhibit “A” to the Affidavit;
  • A statement confirming that the deponent believes the testator understood that the document being signed was the testator’s Will;
  • A statement confirming that the deponent, the testator, and the other witness to the will were all present together when the will was signed by the testator and the witnesses;
  • A statement outlining any changes that the testator made to the Will before signing it (i.e., if the Will is already printed, and the testator makes a change to it in pen, this is noted here);
  • The name and signature of the deponent; and
  • The name and signature of the Commissioner for Oaths who administers the affidavit.

Why is an Affidavit of Witness to a Will Important?

An Affidavit of Witness to a Will should be included as part of every Will, and it should follow the format prescribed by the Alberta Surrogate Court in form NC 8. People who draft their own Will sometimes forget this important part of the document. Even lawyers sometimes neglect to include an NC 8 with the Wills they draft for clients, whether out of carelessness, error or perhaps even in hopes of increasing their chance of obtaining a probate file in the future. However, most prudent Wills & Estates lawyers in Alberta do include the Affidavit with their clients’ Wills.

The main reason for including an Affidavit of Witness to a Will, or NC 8, with your original Will, is that it makes life easier for your Executor when it comes time for a probate application. Someone may die 30 years after making their Will. If there’s no NC 8 attached to the Will, the Executor will have a tough time tracking down witnesses who signed a Will 30 years ago. Furthermore, the witnesses themselves may have also passed away or lost capacity. If the witnesses can’t be identified and located, the Executor will have to prove to the Court that they have made efforts to locate the witnesses, or, worse yet, the Will may even be invalidated altogether.

Double-Check your NC 8 Form

If you have a Will at home, you should double-check that it has an Affidavit of Witness to a Will attached to it. If there isn’t an affidavit attached, or if you’re unsure whether the affidavit meets the requirements of form NC 8, the Wills & Estates lawyers at West Legal will review your existing Will free-of-charge, and with no obligation that you update it.

Alternatively, if you don’t yet have a Will in place, contact our Wills & Estates team to book your free one-hour consultation. Our lawyers ensure that every Will that leaves our office has an Affidavit of Witness to a Will in the prescribed form NC 8 attached to it.

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