What Is Attestation?

Many legal contractual matters, such as wills and deeds, allow a party to request an outside party to witness the signing of a document. That act of witness is known as attestation.

An attestation raises several considerations:

  • The way the attestation is carried out.
  • The way it's proved.
  • How attestation affects the witness' status.
  • How it affects the status of the parties.

Simply witnessing the execution of a legal instrument does not constitute attestation. It must be done at the relevant parties' request.

If a witness' attestation is not available, secondary evidence is admissible. However, if the witness is merely sick, his or her testimony is still required.

If a witness provides attestation to a document that transfers away his or her rights or property — and that individual can be proven aware of this — an estoppel must be put in place to prevent the witness from recanting the attestation later.

An attestation is considered authorized upon sealing and delivery.

"Attestation" is not the same as "attest." In legal terminology, to "attest" means:

  • To swear that something is true.
  • To render a document official by signing it.
  • To swear an official oath.
  • To provide courtroom testimony by speaking as a witness or swearing that something is accurate or true.

A person might have to attest before being allowed access to sensitive information. That individual must attest that he or she understands the risks of disclosing the material. He or she must also attest that it is illegal to use that material for criminal harm or personal injury against the subject of the information.

By contrast, "attestation" is a separate, supervisory act: signing a document to confirm you have witnessed another's execution of it. In the case of a will, every state requires two witnesses to make attestation to its execution, confirm its existence, and validate its contents. In some cases, this requirement is waived if the will was written in the person's own handwriting.

What Is the Attestation Clause?

The attestation clause is the witness' statement at the end of a document certifying that he or she saw the document executed lawfully. After the witness signs this, the will is presumed to be in line with all legal requirements.

By contrast, if the clause is left unsigned (or even if the will-writer merely includes the word "witnesses"), this casts presumption of doubt on the document's completion. Therefore, an unsigned clause should be removed from the document entirely.

Attestation clauses are often used with legal instruments, such as wills or deeds, that only take effect once witnessed. A typical attestation clause includes the text, "Sealed and delivered in the presence of us."

The attesting witness is someone designated by a document's legal parties to sign that document, both to prove he or she witnessed it and for identification purposes.

Related Legal Terms and Conditions

HIS TESTTBUS: Latin term meaning "these witnesses."

CONFRONTATION CLAUSE: Defendants' Constitutionally guaranteed right to confront an adversarial witness.

AUTHENTIC ACT: A legal act performed before a notary or witness.

AMBIGUITAS CONTRA STIPULATOREM EST: A legal ambiguity likely to backfire on the one using it.

Difference Between a Notarization and Attestation

There are many differences between a notarization and an attestation. Only a state-sanctioned official can perform a notarization. This official must have:

  • Paid a fee.
  • Taken an oath.
  • Been sworn in by the Secretary of State.
  • In many cases, passed a test.

Notarization also requires more steps, including ID validation and an official stamp and seal. However, anyone can perform an attestation, unless the witness:

  • Does not reside within the court's jurisdiction.
  • Is dead.
  • Is mentally incompetent.
  • Has a personal or business interest in the matter.
  • Is married to the party who produced the document.
  • Refuses to testify.
  • Swears that he or she did not witness the writing in question.
  • Undergoes a public loss of reputation.
  • Is blind.

Notaries are not responsible for certifying a document's contents, only its signatures. Sometimes notarization is required for the primary signer and credible witnesses.

A notary public can also provide an attestation, but cannot notarize his or her own signature. Another notary must do this.

If you need help with attestation, you can post your legal need (or post your job) on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site, from schools like Harvard and Yale Law, 14 years' average legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.