Will errors—affidavit evidence
Will errors—affidavit evidence

The following Wills & Probate guidance 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 statement of truth (formerly oath) is the only evidence the court will require. There may be circumstances where further evidence is needed.

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. Decide whether any testamentary document satisfies the requirements of that section.

If in doubt because, for example:

  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

  4. the attestation clause is insufficient, then

refer the matter by ex parte application to the district judge/registrar. Write to the registry enclosing a copy of the Will and seeking guidance as to the further evidence required.

The district judge/registrar will call for an affidavit of due execution from one or more of the attesting witnesses.

The district judge/registrar may:

  1. accept evidence from any other person present when the Will was executed

  2. accept evidence from any person they think fit to show that the signature on the Will is in the deceased's handwriting or to establish any other fact that might raise a presumption of due execution, and

  3. require that notice of the application