One of the requisites to establish a valid will is attestation. But what is attestation and what are the requirements for attestation?
First and foremost, “attestation” is defined as testimony or confirmation that something is true, genuine, or authentic. An attestation is frequently in writing. As per s5(2) of the Wills Act (“WA”), when a testator signs his will, his signature must be made or acknowledged by him in the presence of two or more witnesses present at the same time. As such, in the testator’s presence, each witness must attest and sign the will after the testator’s signature has been so made or acknowledged.
It should be noted that “in the presence” refers to actual visual presence. This is illustrated in the case of Brown v Skirrow whereby the court held that “There must be, on the part of a testator or testatrix, capacity to see the witnesses sign – that is, actual visual capacity.” This is similar to the case of Casson v Dade. In this case, the testatrix signed her will in the solicitor’s office then went to sit in her carriage before the witnesses signed. As they were signing, the will-maker had a direct line of sight through the window of the carriage and the window of the office so that she could see the formalities being complied with. Hence, the will was held to be valid since she had actual visual capacity.
Even so, the attesting witnesses need not sign in the presence of each other. This can be seen in the case of Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai whereby the court held that it was not necessary for the witnesses to attest at the same time as long as the witness attested in front of the testator.
Besides, it is not necessary that the witness should know that it is the testator’s will. This is illustrated in the case of Re Benjamin wherein it was held that the signature of a testator to his will may be duly attested although an attesting witness does not know that the document in question is the testator’s will. The intention of the witness is immaterial so long as he signs the paper in compliance with the requirements of the Wills Act 1937.
We now know that a will needs to be attested by two witnesses in the presence of the testator. However, who is qualified to be a witness?
There is no statutory provision which sets out who is qualified to witness a will. There is also no statutory provision that forbids any person from witnessing a will. Although it is prudent to ensure that the attesting witness is of sound mind and is not a minor and if required, the witness should be able to testify in support of the execution of the will, s8 WA states that the will cannot be invalidated by reason of incompetency of attesting witness.
According to s10 WA, a creditor or the spouse of said creditor may be a witness while s11 WA states that an executor may act as a witness. As per s9 WA, although beneficiaries and their spouses are all admissible witnesses, any gift to an attesting witness or to the spouse of such a witness is considered null and void.
In short, a will needs to be attested by two witnesses in the presence of the testator and said witnesses cannot be invalidated by reason of incompetency. The witnesses may be an executor. They may also be a creditor, a beneficiary or the spouses of the creditor or beneficiary.
