Will errors—affidavit evidence
Will errors—affidavit evidence

The following Wills & Probate practice note provides comprehensive and up to date legal information covering:

  • Will errors—affidavit evidence
  • Affidavit evidence
  • Due execution
  • Knowledge and approval
  • Alteration
  • Incorporation
  • Marks/attachments
  • Date
  • Attempted revocation
  • Leave to swear death
  • More...

Affidavit evidence

Usually the information contained in application form PA1P or PA1A or the online application (formerly a separate statement of truth) is the only evidence the court will require in order to prove the deceased’s Will. However, there may be circumstances where further evidence is needed, which may be in the form of an affidavit.

With effect from 2 November 2020, the Non-Contentious Probate Rules 1987, SI 1987/2024 (NCPR 1987) are amended by the Non-Contentious Probate (Amendment) Rules 2020, SI 2020/1059 to provide for the use of witness statements as an alternative to affidavits for certain non-contentious probate applications and processes.

Due execution

The inclusion in a Will of an attestation clause prima facie showing compliance with the requirements of section 9 of the Wills Act 1837 raises a presumption of due execution. Practitioners will need to decide whether any testamentary document satisfies the requirements of that section.

There may be doubt, such as when:

  1. the signature of the testator or of either of the witnesses is in an unusual position

  2. the signature of the testator or of either of the witnesses is imperfect

  3. no attestation clause is included, or

  4. the attestation clause is insufficient

In that case, the matter should be referred by ex parte application to the district judge/registrar. The practitioner should write to the registry enclosing a copy of the Will and seeking guidance as to

Related documents:

Popular documents