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Affidavit of attesting witness

In certain circumstances, it is necessary to obtain affidavit(s) of attesting witness(es) and to submit same with your application for a grant of representation.

There is a precedent affidavit of attesting witness (AAW) in the Rules of the Superior Courts in Appendix Q Form 2.

Set out below are the main circumstances in which an AAW is required. Sometimes it is necessary to obtain an AAW from both witnesses.

Before lodging your application it is recommended that you review the particular will and ascertain if any of the circumstances below apply (or if there are any other factors which could give rise to the need for an AAW). If so, you should obtain an AAW before lodging your application with the Probate Office. Failure to do so will result in your application being rejected.

Circumstances

What the affidavit of attesting witness should cover

1.

Where there is no attestation clause in the will

1. Due execution (as per precedent AAW)

2.

Where the attestation clause is defective in some way:

e.g. 1 - refers to 5 pages when there are only 4 pages

e.g. 2 -where the wording does not make clear that the witnesses were present at the same time when the testator made or acknowledged his signature

e.g. 3- where the name of the testator is incorrectly stated in the attestation clause

1. Due execution
    and
2. Cover error in the attestation clause if relevant (e.g. 'the attestation clause erroneously refers to 5 pages whereas it should have referred to 4 pages')

3.

Where the testator signed by a mark and the attestation clause does not adequately cover the reason for this.

1. Due execution
    and
2. Reason why testator signed by a mark (as in being unable to write due to physical debility).
    and
3. Include (if the following is true) 'before said testator executed said will (codicil) same was truly audibly and distinctly read over to him by me (or by AB in my presence) and said testator appeared fully to understand the same and was at the time of the execution thereof of sound mind, memory and understanding.
    and
4. If testator was blind: '… at the time of execution of the said will (codicil) the testator was blind and that I and the said (name other witness) signed our names in such a position that had the testator been possessed of his eyesight he could have seen us so sign'.

4.

Where the testator’s signature is feeble

1. Due execution
    and
2. Reason why signature is feeble
    and
3. Include (if the following is true) 'before said testator executed said will (codicil) same was truly audibly and distinctly read over to him by me (or by AB in my presence) and said testator appeared fully to understand the same and was at the time of the execution thereof of sound mind, memory and understanding'.

5.

Where there are amendments or interlineations or obliterations or erasures in the will which have not been properly executed

1. Due execution
    and
2. Specify each alteration
    and
3. Add 'the said amendment (or interlineations and so on) was made in the said will prior to execution thereof'.

6.

Where the will is undated (or there is a doubt about the date)

Due execution including date the will was executed and explanation regarding same.

7.

Where the testator’s signature appears after the signatures of the witnesses

Due execution

8.

Where the testator signed twice.

1. Due execution
    and
2. '… the testator signed his name twice in error (or because his first signature was feeble or as the case may be) … but all being done in the one continuous act of execution'.

9.  

Where the will is written on a number of loose pages which are not bound together.

1. Due execution
    and
2. Specify number of pages in the will and confirm all pages were present in the room at the time of execution.

 

 
 
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Content reviewed: May 2017