Attestation clause

An attestation clause is the passage at the end of a will recording that it was executed in accordance with section 9 of the Wills Act 1837. It raises a presumption of due execution — meaning the court will assume the formalities were followed unless there is evidence otherwise.

The section 9 formalities#

A will is only valid if:

• it is in writing, and signed by the testator (or by someone else in their presence and at their direction);
• the testator intended by their signature to give effect to the will;
• the signature is made or acknowledged in the presence of two or more witnesses, present at the same time; and
• each witness then signs in the presence of the testator.

Every element matters. Witnesses who sign in sequence rather than together, or who were not in the room when the testator signed, can invalidate the entire will.

The mistake that costs beneficiaries their gift#

Section 15 of the Wills Act 1837: if a witness — or their spouse or civil partner — is a beneficiary, the gift to them fails. The will remains valid; the gift does not.

So a testator who asks their daughter and her husband to witness a will leaving her half the estate has just disinherited her, entirely by accident, and nobody notices until after death.

Never use a beneficiary, or a beneficiary's spouse, as a witness. Neighbours are ideal.

Practical points#

Witnesses should be over 18, of sound mind, and able to see the testator sign. Record their full names, addresses and occupations so they can be traced years later. Date the will on the day of execution. Do not attach anything with a paperclip or staple that is later removed — marks on a will invite questions about a missing document.

Willo produces the attestation clause and flags an incomplete execution before the document leaves you.

Related#

Testamentary capacity · Will writing software