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By Nicolae Trofin

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Attestation of a Will

The attestation clause (Testingclause in Scotland) is perhaps themost important part of any will – yet most people don’t know exactly what it is. At least, not when it is called by its proper name(although once it is explained it is likely that everyone would beaware of it).

The attestation clause is the last thing to be written in a will. It is the final proof that the will is correct, genuine, and was written in the right way. They date back to the 1840s, and since then such a clause must be present on every will for it to be considered valid.

What is the attestation clause?

It is the part of the will that promises that:

a) the testator wrote the will without any duress or coercion

b) the testator was in good mental health (sound mind) when the will was written

c) the will was witnessed and that the witnesses signed the will

d) that the signature is the testator’s

e) that the testator was at least 18 when the will was completed (or was a member of the armed forces)

If the will is found not to have the attestation clause on it once the testator dies, then it will be found to be invalid. It will be contested or challenged, and the estate may well become intestate.

Ensuring it’s rights

For a will to be valid it must be made and signed in accordance with the Wills Act 1837.

It may seem the simplest part of dealing with wills but often this is the part which causes the most problems. If a will is not correctly attested as per section 9 of the Wills Act 1837, this may lead to additional costs and delays inproving the will or even the will being found not to be valid and unable to be accepted at probate.

For a Grant of Probate to be issued the Probate Court will look at the validity of the will. This being that the will has been attested correctlya nd not tampered with.

The attestation page, commonly the last page, is the most important part of a will – without this a will is invalid. The testator is required to sign and date the will in the presence of two people – the witnesses.

Section 9 of the Wills Act 1837

No will shall be valid unless —it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and it appears that the testator intended by his signature to give effect to the will; and the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and each witness either—attests and signs the will; or 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.

Note: s9 of the WA 1837 does not require a will to be dated in order for it to be valid; however, a will should be dated in order to prove hat it was the testators last will and testament. If the testator had made previous wills, and these had not been destroyed there could be difficulties in proving which was the last will made leading to extra expense/ time and a danger that an earlier will is proved. There is also another reason for a dating a will; where a will contains a guardianship appointment, it is required to bedated in order for it to be a valid appointment (signed as a deed).

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This message was added on Thursday 9th March 2023

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