According to the Indian Succession Act, a standard, unprivileged Will needs to be attested by at least two witnesses (or more if you can). Each witness must either see the testator (the Will creator) sign the Will or at least receive an acknowledgement of the testator’s signature. The law also requires that these witnesses sign the Will in front of the testator. When it’s time to validate the Will in court, at least one witness has to be examined successfully, else the Will won’t hold up.
Recently, there was a similar case in the Punjab and Haryana High Court where the scribe (the person writing the Will) was also a witness to the Will. The high court had ruled that there is no legal provision which bars a scribe from becoming an attesting witness to a Will, provided the Scribe clearly states the intention to attest and become a witness to the Will.
It must be noted that Wills are classified under two broad categories: privileged wills and unprivileged wills.
As per the legal provisions contained in Section 65 of the Succession Act, a ‘privileged will’ is a testamentary declaration made by any soldier being employed in an expedition or engaged in actual combat or an airman in the same situation, or a mariner at sea, who is at least 18-year-old, to manage their property.
The other category of Wills, known as unprivileged Wills, which are made by people not covered by Section 65, are regulated by the provisions of Chapter III. Section 63 of the Succession Act. Here are the requirements for execution of unprivileged Wills:
- The person whose will is being written (testator) must sign or give his thumb impresssion to the Will. If this is not posseible then some other trusted person must sign it in the Will’s testator’s presence or by his direction.
- The Will’s testator’s sign or thumb impression or the other trusted person who is signing for the testator must be so placed that it appears that they are signing or giving thumb impression in order to give effect to the writing of the Will.
- The Will must be attested by two or more witnesses, each of whom has to see the testator sign or affix his mark to the Will or see some other person sign the Will, in the presence and by the direction of the testator, or receive from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and
- each of the witnesses must sign the Will in the presence of the testator. But it is not necessary that more than one witness has to be present at the same time. No particular form of attestation is necessary.
What about registration of Will?
Adnan Siddiqui, Partner at King Stubb and Kasiva, pointed out to ET Wealth Online that registration of a Will is never compulsory in India, irrespective of the testator’s religion.
Section 18 of the Registration Act, 1908, places Wills in the category of documents for which registration is optional, unlike sale deeds, gift deeds or certain other conveyances where registration is mandatory under Section 17.
Siddiqui says: “This holds true for Hindus, Christians, Parsis and, with some nuances under Muslim personal law, for Muslims as well.”
However, Siddiqui says that he would advise to register the Will voluntarily wherever possible as registration deters allegations of forgery or backdating, keeps the original safe from loss or destruction, and considerably eases the path if probate, letters of administration, or a contested succession proceeding becomes necessary later.
Siddiqui says: “The cost and minor procedural inconvenience of registering a Will are almost always outweighed by the certainty it buys the family after the testator’s death.”
What if the original registered Will is damaged and photocopy is relied on?
There was another case in the Supreme Court where the property seller had the photocopy of a Will and it was key evidence to prove the title of the property. In the end, it turned out that the Will was forged.
Shraddha Nileshwar, Head – Will & Estate Planning at 1 Finance, says that a photocopy significantly weakens the evidence. The court flagged that the FSL report, which was the prosecution’s key evidence, was based on a photocopy of the disputed Will.
Nileshwar says: “A handwriting expert’s opinion is already considered inherently weak and merely corroborative, and when founded on a photocopy of Will, it weakens further.”
Any party can file an application under Section 94 of the BNSS (formerly Section 91 CrPC) compelling production of the original, and unjustified withholding can attract an adverse inference.
Nileshwar says: “The correct sequence is to first secure the original Will through a court order and then commission the expert opinion.”
Nileshwar says that practically speaking, originals of old Wills are frequently missing, conveniently or otherwise. Sub-Registrar records are inconsistently maintained and in rural or semi-urban areas, decades-old documents are often untraceable.
Nileshwar says: “Even when an original Will exists, forensic laboratories are overburdened and expert opinion timelines stretch into years.”
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