Attestation clause

The law of wills and trusts
Part of the common law series
Inheritance
Intestacy  · Testator  · Probate
Power of appointment
Simultaneous death  · Slayer rule
Disclaimer of interest
Types of will
Holographic will  · Will contract
Living will
Joint wills and mutual wills
Parts of a will
Codicil  · Attestation clause
Incorporation by reference
Residuary clause
Problems of property disposition
Lapse and anti-lapse
Ademption  · Abatement
Acts of independent significance
Elective share  · Pretermitted heir
Contesting a will
Testamentary capacity  · Undue influence
Types of Trusts
Express trust  · Asset-protection trust
Protective trust  · Spendthrift trust
Charitable trust  · Honorary trust
Resulting trust  · Constructive trust
Special Needs trust
Doctrines governing trusts
Pour-over will  · Cy pres doctrine
Other areas of the common law
Contract law  · Tort law  · Property law
Criminal law  · Evidence

In the statutory law of wills and trusts, an attestation clause is a clause that is typically appended to a will, often just below the place of the testator's signature. Its purpose is to allow the will to be admitted to probate without affidavits from the attesting witnesses to be submitted to the probate court along with the will itself. A will containing an attestation clause is often called a self-proved will.

Attestation clauses were introduced into probate law with the promulgation of the first version of the Model Probate Code in the 1940s. Before the introduction of the concept, when a will was offered to probate, an affidavit from one or both of the witnesses was typically required, affirming that the will offered to the court was indeed the document that the testator had signed. The requirement of these affidavits caused delay in the administering of estates, occasioned by the need to track down the witnesses or puzzle out their illegible handwriting; often, the witnesses had moved or died themselves. An attestation clause, in effect, appends a form of affidavit to the will itself. A typical attestation clause reads:

We, the undersigned testator and the undersigned witnesses, respectively, whose names are signed to the attached or foregoing instrument declare:

(1) that the testator executed the instrument as the testator's will;

(2) that, in the presence of both witnesses, the testator signed or acknowledged the signature already made or directed another to sign for the testator in the testator's presence;

(3) that the testator executed the will as a free and voluntary act for the purposes expressed in it;

(4) that each of the witnesses, in the presence of the testator and of each other, signed the will as a witness;

(5) that the testator was of sound mind when the will was executed; and

(6) that to the best knowledge of each of the witnesses the testator was, at the time the will was executed, at least eighteen (18) years of age or was a member of the armed forces or of the merchant marine of the United States or its allies.

This attestation clause is modelled on the Model Probate Code's version. Statutes that authorize self-proved wills typically provide that a will that contains this language will be admitted to probate without affidavits from the attesting witnesses. Many states allow attestation clauses to be added as codicils to wills that were originally drafted without them.

Reference

• Burns' Annotated Indiana Statutes, ss. 29-1-5-3.1