One common question we often receive is about the purpose of the seemingly lengthy signature clause at the end of a Will. This clause, known as the “attestation clause,” plays a crucial role in the legal framework of the Will, even though it isn’t a mandatory requirement for its validity.
What is an attestation clause?
The attestation clause in a Will is a statement that outlines the circumstances under which the Will was signed. It essentially provides a written account of the events during the signing, confirming that all the required legal formalities were followed. While the absence of an attestation clause does not render a Will invalid, having one simplifies the process and provides a presumption of proper execution, which can save time, effort, and potential legal disputes later on.
Key components of an attestation clause
The attestation clause generally includes the following statement to ensure the Will is seen as executed correctly:
SIGNED by the above named [YOUR NAME] as and for their last Will in our presence and then by us in theirs.
The significance of an attestation clause
While it might seem like a minor detail, a properly drafted attestation clause is a powerful element in a Will. Its inclusion creates a legal presumption that the Will was signed and witnessed correctly, which is referred to as proper “execution.” This presumption means that, unless there is evidence to the contrary, the court Will accept that the Will was signed as required by law without needing further proof from the witnesses.
Without an attestation clause, one or both witnesses may need to provide sworn affidavits or statements before the Will can be admitted to probate. This process can delay the administration of the estate and create unnecessary complications, particularly if the witnesses are difficult to locate, have passed away, or are unable to provide a statement.
Legal standards and requirements
The requirements for properly executing a Will are governed by Section 9 of the Wills Act 1837. This legislation outlines the formalities that must be followed, including the presence of witnesses and the testator’s acknowledgement of the Will as their own. Meanwhile, the specific rules related to attestation clauses are detailed in Rule 12 of the Non-Contentious Probate Rules 1987, which provide guidelines on what should be included to ensure the Will is presumed valid.
Why we include an attestation clause in every Will
At Wills.services, we include a well-drafted attestation clause in every Will we prepare because it provides peace of mind and legal protection. It ensures that the execution of the Will is presumed correct, shifting the burden of proof to anyone who might contest the validity of the Will. Essentially, while the Will can still be challenged, it becomes the responsibility of the challenger to prove that the signing was not conducted properly in accordance with legal requirements.
In summary, the attestation clause is a small but mighty component of a Will. By clearly documenting the proper signing and witnessing of the Will, it smooths the path through probate and minimises the potential for disputes. For more detailed guidance, explore our other guides and learn about the importance of executing a valid Will.
