Rule Text
Unnecessary. When the execution of an attested writing is in issue, whether or not attestation is a statutory requisite of its effective execution, no attester is a necessary witness even though all attesters are available unless the statute requiring attestation specifically provides otherwise.
Amendment history: (Added by SCO 364 effective August 1, 1979) ARTICLE X. WRITINGS
Committee Notes
essary. At common law an attesting witness was a preferred witness who had to be produced or accounted for in proving the execution of an attested document. Once the absence of the attesting witness was satisfactorily explained, the next best evidence could be received. Evidence of his handwriting was generally the next best evidence. If all attesters were present and denied having witnessed the execution, the proponent of the document was permitted to introduce other evidence to prove that the attesters had witnessed the execution. The modern trend is to abolish the common law requirement unless the law governing the validity of the writing requires a subscribing or attesting witness. This Rule is identical to Alaska R. Civ. P. 43 (k) which it supersedes. Substantially similar to the Federal Rule, it provides that no attester is a necessary witness to prove the valid execution of a document unless the statute governing the validity of the attestation provides otherwise. See AS 34.15.200; AS 34.15.210; AS 34.15.220, providing for proof of an execution of a conveyance. For similar provisions see Uniform Rule 71; California Evidence Code § 1411; N.Y. Civ. Prac. Law, Rule 4537; (McKinney) Maine Rule 903; Nebraska Rule 27-903. ARTICLE X. WRITINGS
