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Testing Times for Attestation

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Section 9 of the Wills Act 1837 requires a will valid in English Law to be in writing and signed by the testator (or someone else at his direction) in circumstances where the signature was intended to give effect to the will. The signature must be made or acknowledged in the presence of at least two witnesses, and the witnesses must either “attest[ ] and sign” the will or acknowledge their signatures in the testator’s presence. The Act expressly provides, however, that “no form of attestation shall be necessary”. In its recent Consultation Paper on Making A Will, the Law Commission asserted that: “[i]f ‘attestation’ does not require anything more than the witnesses being present and bearing witness to the testator’s signature (or his…acknowledgement of the signature) then the requirement for the witness to ‘attest’ appears redundant”, and provisionally proposed its removal. Even if the requirement is retained, the Commission suggested that the difficult notion of attestation “be defined to mean that the witness must sign the will and intend that his or her signature serve as clear evidence of the authenticity of the testator’s signature” and apply even where the witnesses have acknowledged their signatures.



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Conveyancer and Property Lawyer

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Sweet & Maxwell

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