Will Attestation Clause

Trusts Discussion
1

Hi,
I am relatively new to the forum and this is my first post so I’m not quite sure whether I should post directly of go via this email address? I have only recently passed my Will writing exams and am now in the process of setting up my own business so apologise if my question is not a technically very complex one…

The Topic is “Will Attestation Clause”

As far as I can see, the standard attestation clause in will writing software such as ‘Will Suite’ or ‘Sure Will Writer’ is as follows; “We confirm this Will was signed first by xxx in our presence and then by both of us in the presence of xxx”

The Will writing course I have just taken recommended that “Witnesses should also sign in the presence of each other. In the case of a challenge to the Will each witness can then not only provide evidence that they themselves witnessed the testators signature but also that they were present when the other witness signed.” I am fully aware that, as per the 1837 Act, there is no legal requirement for witnesses to be present to witness each other’s signature, nevetherless this was suggested as good practice.

My query is whether anyone knows why it was decided not to add the words “and of each other” [or similar] at the end of the standard attestation clause in our Will writing software? I know that the Sure Will Writer for example will allow me to amend its standard attestation clause for a particular Will BUT it will not allow me to make this as a permanent change to all Wills I make, ie I would have to change each one individually.

I am very much in favour of using plain English wherever possible but ommitting the words “and of each other” seems to change the meaning and slightly weaken the clause? or perhaps it is felt that these few extra words really do not add anything of any significant value?

I note that the standard attestation clause still used by many law firms, although I do not suggest reverting to such ‘archaic’ language, does tend to refer to witnesses signing in each other’s presence, for example, from my late parents’ will, the attestation clause states; “signed by the above named xxx as his last Will in the presence of us both present at the same time who at his request and in his presence and in the presence of each other have hereunto subscribed our names as witnesses”.

In short, should I be concerned in any way about the attestation clause as it is currently configued in our software or might it perhaps be strengthened a little by appending the words “…and of each other”?

Kind regards,

John (Franklin)

Greendrift Wills & Estates

2

I wonder if the wording reflects the issues over the last year of executing wills whilst socially distancing.

I note that James Kessler, who looks to keep word count to a minimum uses: Signed by (testator) to give effect to this Will, in the presence of two witnesses present at the same time, who have each signed this Will in the presence of the Testator.

Whilst it does not state explicitly that the witnesses sign in the presence of each other, I believe that is implicit in the text. I suggest the same applies to the wording from both “Will Suite” and “Sure Will Writer”.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

3

If A signs in the presence of B and C and they then both sign in the presence of A, it’s implicit that B and C would be together. It would be a pretty odd set of facts where you met the conditions in the wording you quote but B and C signed separately. Not impossible but odd.

Also, it is a declaration that the parties are meeting the legal requirements rather than best practice: sometimes it is hard enough to get clients to follow those. A much greater menace is/was the letter paperclipped to the will but I don’t know if the new outsourced scanning teams at what remains of the probate registry will pick up paperclip marks anymore.

Andrew Goodman
Osborne Clarke LLP

4

If A signs in the presence of B and C, who both then sign in the presence of A, this does not necessarily mean that B and C sign in the presence of each other. B could have left the room after he signed and before C signed, so that while B signed in the presence of C, C did not sign in the presence of B.

I know that this is not a common happening but it is possible.

Cliona O’Tuama

Solicitor

6

Hi. If you have access to Williams on Wills it gives very detailed information about attestation clauses. There was a case called Re Selby - Bigge [1950] 1 All ER 1009 where the clause was

Signed by the above named [ABC] in our presence and attested by us in the presence of him and each other

Enquiries with HMCTS indicate that they like this clause as it allows them to check swiftly if the will was correctly executed.

I would say be careful as there are lots of claims arising from wills that are not correctly signed and witnessed. Its a vitally important. Simple solution always have testator and two witnesses present and signing at the same time.

7

Hi Vincent, many thanks for your helpful response and for referencing the Selby - Bigge case, and Williams on Wills, both of which I shall endeavour to get hold of…

When you say “enquiries with HMCTS indicate…”, are you referring to a recent enquiry which you have yourself made? and, just to be clear, are you saying that HMCTS have expressed a clear preference for the words “and of each other” [or similar] to be included at the end of the attestation clause, as per my original query? If so, it seems puzzling that the Will writing software, which I assume many of us use, omits these words from its standard attestation clause. These 4 words words can hardly be said to unduly increase complexity or the overall word count; and if there are just a handful of instances where an explicit statement that the two witnesses have attested in the presence of each other, can assist HMCTS in their work, and also strengthen the evidence of a correct execution, why not include them?

Regards,

John

8

Hi John, sorry for the delay (too much work). Page 663 of Williams on Wills 10th edition contains a note to the effect that ‘it was learned from the Principal Probate Registry that “signed by the testator in our presence and then by us in his” is welcomed because it enables the Registrars to see at a glance that the requirements are all satisfied.’

I guess this was many ages ago as the Principal Probate Registry changed its name to Principal Registry of the Family Division years ago (but I could not say when)