Attestation clause

Words indicating where testator/ testatrix and witnesses must sign their names.

An attestation clause is important to ensure there is no doubt as to the validity of a will, the will should be signed by the Testator/ Testatrix and that signature must be witnessed by 2 or more witnesses who are present at the time of signing.

Problems can occur if there is doubt as to whether words have been added after the will has been made if the signature of the maker of the will and the witnesses are not at the bottom or end of the will, therefore it is a matter of good practice to indicate in pencil on the will where the Testator/ Testatrix and witnesses must sign their names.

A proper attestation clause at the end of the document, correctly signed and witnessed, will mean that the law will recognise that the will has been properly attested. Without a formal attestation clause the will is not necessarily invalid but it may be necessary to obtain an “affidavit of due execution” from one of the witnesses, providing they have not died before the testator, so that probate can be obtained.

The simplest form of attestation clause is: - “signed by the testator in our presence and then by us in his”.

Sec 9 of The Wills Act 1837 states:

'Signing and attestation of wills

No will shall be valid unless—

(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b)it appears that the testator intended by his signature to give effect to the will; and

(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d)each witness either—

(i)attests and signs the will; or

(ii)acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),

but no form of attestation shall be necessary.]'


 

 

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