Will query

[shero101]

Hi, I am involved in dealing with the probate of a will. I have read and re read the will content and it is absolutely crystal clear with no ambiguity and the signature was witnessed correctly by two disinterested parties. However, it is under investigation because the Probate office have advised that it contains a -

'defective attestation clause'.

What does this term mean ? and does it relate to the content of the will or the way that it was witnessed ?

[Barmaid]

The attestation clause is the bit at the bottom which reads "Signed as a testator by him in our presence and then by us in his presence". Basically, this recites s15 Wills Act 1837 which broadly states that a will should be signed by a testator in the presence of two or more witnesses who should then attest and sign the will in the presence of the testator. No form of attestation is necessary under s15, however, without it, the Probate Registrar will usually ask for an affidavit of due execution from one or both of the witnesses to swear the circumstances in which the will was executed. As long as the witness is able to confirm that s15 was complied with, there should be no further problem. What exactly does your attestation clause say?

[Barmaid]

I am talking out of my backside. It is not s15. It is s9. Only been teaching it for about 8 years. Sorry.

[shero101]

Barmaid, thanks for that. The will actually states -

'Signed by the testator the said ... in our presence and in the presence of each other'.

rather than '...and then by us in his presence'.

Could it simply be the wording ?

[Barmaid]

Yes it's that wording that has caused the problem. Will not mean the will is invalid as long as the requirements were complied with You will need to obtain an affidavit from one of the witnesses to submit to the probate registry detailing exactly what happened.

[shero101]

Barmaid, thanks again. This has clarified the issue and makes sense now as one of the witnesses has done an affidavit. Also a form needs to be signed the person prejudiced by the will to give consent to it being proved in its present form.