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Recently there was a case in Chhattisgarh High Court where a grandfather’s Will from 30 years ago failed to hold up in court because the scribe and both the attesting witnesses had died by the time the it was challenged. Although two other witnesses were still alive, they claimed they did not actually see the Will getting executed. So when two brothers claimed ownership of their ancestral land based on this Will, the high court rejected it.
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The high court pointed out that the main argument for claiming the title was based on a 30-year-old document, specifically a will from 1958.
The high court said: “However, the said will has not been duly proved by the appellants (two brothers) through witnesses in accordance with the provisions of Section 63 of the Indian Succession Act and Sections 68 and 69 of the Indian Evidence Act.”
Thus, the court concluded that just because the Will is 30 years old, it doesn’t mean it was properly executed under Section 90 of the Indian Evidence Act. It is essential that this Will is vaildated by attesting witnesses in line with the aforesaid statutory provisions.
Prof. (Dr.) Rahela Khorakiwala, BITS Law School, told ET Wealth Online that in this case, the legal requirements under the Indian Succession Act, 1928 and the Indian Evidence Act, 1872 were not met. None of the attesting witnesses were alive when the Will needed to be proved and therefore could not be present in court to attest to it. The two brothers also failed to prove the signatures of any of these attesting witnesses.
Also read: More than 30-year-old Will fails in High Court: Why brothers lost claim to ancestral land
This case highlights why certain factors need to be considered at the time of creating a Will.
Khorakiwala says that the brothers lost the inheritance right through the Will. However, they can still inherit the land through the laws of intestate succession as provided for under the Hindu Succession Act, 1956, which is applicable in this case.
Also read: Probate granted to Will but criminal court finds the Will to be forged: Affected party can apply for revocation of probate
Precautions needed to safeguard a Will so that it does not fail the test of law
Khorakiwala shares some precautionary measures to ensure that a Will passes the test of law:
Be clear about whether Will’s witness will be able to give testimony when the court demands a test of Will
When drafting a will, it’s important to think about not only what the Will says but also how it will hold up in court when the testator is no longer alive. Anyone who drafts a Will should always ensure that if the inheritance goes ro someone two generations down, the witnesses should be of a similar age to the beneficiary.
An attesting witness should be a younger, reliable person and ideally professionals like a doctor or a lawyer. In cases where the testator is of an advanced age, the presence of a doctor as an attesting witness is especially recommended.
Also read: Think twice before picking a Will writer: How close relationships can complicate probate
Mention clearly why someone is excluded from the Will
If someone would inherit under intestate succession, but is being left out of the Will, it’s wise to explain why.
Own handwriting Will has more evidentiary value
A holographic will (in the testator/testatrix’s own handwriting) has greater evidentiary value. It is also subject to the same statutory provisions of law but compliance with Section 67 of the Indian Evidence Act (Section 65 of the Bharatiya Sakshya Adhiniyam, 2023) becomes slightly easier to satisfy.
Consider videorecording the execution of the will in the presence of the witnesses. Though this is not a legal requirement, it can be a useful consideration.
Also read: Witnesses to a Will turn hostile? How Hindu succession is decided then
Witness should prepare an affidavit setting out the Will’s execution
The two witnesses should immediately prepare an affidavit setting out the execution of the will and the attestation in their presence. This affidavit should be duly notarised and can then be readily used on the death of the testator/testatrix.
Registration of a Will: Optional but advisable
Though by law, you are not required to register a Will, it may be better to register a will to strengthen its credibility as it establishes the time and place of its execution and dispels the allegation that the document was subsequently created.
However, registration alone does not eliminate the legal requirements to prove a will. The Indian Succession Act, 1928 and the Indian Evidence Act, 1872 prescribes the manner in which a will is required to be proved.
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