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The Importance of the Attestation Clause

Before a Will can be admitted to probate the district judge or registrar must be satisfied that it was duly executed in accordance with the proper formalities. The attestation clause in a Will will raise the presumption that the Will was correctly executed where it recites that the formalities have been complied with. Under the Non-Contentious Probate Rules 1987 if the Will contains no attestation clause or it is insufficient in that it raises a doubt with the district judge or registrar then he must require an affidavit. This must be produced before the Will can be admitted to probate. The affidavit should be from one of the attesting witnesses or from someone else who was present when the Will was executed. Under Rule 12(2) the judge or registrar may accept an affidavit from any other person who he believes can show that the signature is in the deceased’s handwriting. He/she may also require that notice of the application is given to anyone who may be prejudiced by the Will. If he/she fails to be satisfied by the evidence then probate will be refused and the Will marked accordingly. The correct attestation clause and the presumption of due execution will not apply where there is evidence that the formalities have not been fully complied with even where the testator intended to execute a Will such as where there is only one witness. In a situation where the testator is illiterate, it is especially important to include a full attestation clause. Although an attestation clause, confirming that the will was read over to the testator who understood and approved it, is not required by section 9, the inclusion of such a clause will normally avoid the necessity of providing the registrar with an affidavit of due execution.

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