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What is an Attestation clause and why is it so important?

December 17, 2024

Attestation Clause of the Will 

The attestation clause of a Will is the clause that explains the circumstances in which the Will has been signed and witnessed. Whilst including a form of attestation clause is heavily encouraged, it is not a legal requirement, but we would always recommend one being included as it provides evidence that these were the wishes of the Testator, and the Testator had intent of making the Will as well as knowledge and approval of its contents.

Ensuring the Will is signed and witnessed correctly is of upmost importance, as any minor error can have a major affect the validity of the Will.
There are two focal points from the Wills Act (1837), that I want to touch on as they're relevant to the correct attestation of a Will.

Section 9 Wills Act (1837)

Section 9 (1) of the Wills Act [1837] sets out how the Will must be signed and witnessed to ensure validity. This section states that:

 

“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.”


Section 15 Wills Act (1837)

The second Section of the Wills Act that is relevant to the attestation of a Will is section 15 of the Wills Act (1837), this section states:

 

"Gifts to an attesting witness to be void.

If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will."

 

In layman’s terms, any beneficiaries that sign as witnesses on the Will void their gift. This can be rectified if the Will is re-signed and witnessed but it is important to ensure you know who can and cannot be witnesses on the Will to avoid any issues.

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