Client’s With Special Requirements – Attestation
In the majority of cases a simple attestation clause such as “SIGNED by the above named [TESTATOR] as and for his last Will in our presence and then by us in his” will suffice. But what should you do if your client is blind, illiterate or has only a limited understanding of English? In these circumstances you need an amended attestation clause that accurately reflects the client’s circumstances.
In the case of blind or illiterate testator’s it is likely that the Will needs reading to the client. If so the Will must be read to the client in the presence of the witnesses. You must also consider whether the client is going to be signing themselves, whether they can only make a mark, or whether someone else needs to sign for them. The below is an example of an attestation clause where the testator is blind and can sign with their mark:
“SIGNED by the above named [TESTATOR] who is blind and who is physically unable to write his signature with his mark the foregoing having previously been read over to him when he appeared thoroughly to understand the same and to approve the contents thereof as and for his last Will in our presence and then by us in his”
The attestation clause must reflect the exact circumstances of the signing or the Wills validity can be called into question. Where someone else is to sign on the testator’s behalf this must be clearly communicated, and it must be done in the testator’s presence and at his direction. In the case of Barrett v Bem and Others [2012] EWCA Civ 52, the Court of Appeal held that the court should not find that a Will has been signed by a third party at the testator’s direction unless there was a “positive and discernible communication by the testator that he wished the Will to be signed on his behalf by a third party.”
If someone is signing on behalf of the testator they may sign either in their own name or in the name of the testator.
In the case of a testator who has a limited understanding of English an interpreter will be required. The Will must be read to the testator in their native language and then again in English, all in the presence of the witnesses. The attestation clause in this case must show the language that the testator understands, the interpreter who read the Will to them, and that the Will was read in both languages. An example is below:
“SIGNED by [TESTATOR] who understands the French language but has imperfect knowledge of and cannot read the English language (the foregoing having been read over to him by me the undersigned 1st Witness in English and having been truly interpreted by [INTERPRETOR] who understands both the English and French languages) which reading and interpretation were both done in our presence when the said [TESTATOR] appeared thoroughly to understand this Will and to approve the contents thereof as and for his last Will in our presence and then by us in his.”
