The Role of Witnesses in Creating a Will in India

In India, a Will is a legal document that guides the way in which an individual's property and assets should be distributed in the event of their death. In India, the Indian Succession Act of 1925 regulates the process of making a Will. One such important aspect of making a Will is the role of Witnesses.

A witness is a person who observes the signing of a Will and attests to its validity. In India, two witnesses are required for a Will to be considered legally valid. These witnesses must be present at the time of signing and should not be beneficiaries of the Will. It is advisable to select witnesses who are neutral and have no conflicts of interest. Professional platforms like AasaanWill help users select appropriate people who can be the correct witnesses to ensure genuineness and legal compliance of the Will.

The role of witnesses is crucial in ensuring the validity of a Will. They are responsible for verifying the identity of the person creating the Will, confirming that the person is of sound mind and understands the contents of the Will. They also ensure that the Will is signed voluntarily and without any coercion. For instance, in practical terms, a witness confirms that the testator was not being influenced in any way, and was fully aware of what he was doing, so that the Will has greater stronger ground, if the Will is contested.

Additionally, witnesses play a vital role in cases of any legal disputes that may arise after the death of a person. If the validity of the Will is challenged, witnesses can be called upon to testify and provide evidence about the signing of the Will. Such testimonies often become very important in probate courts to establish that the Will was properly executed and that the testator had sufficient mental capacity, thus avoiding long family quarrels.

It is important to note that witnesses must be competent to testify in court. This means that they must be of legal age and must not have been declared mentally unsound or disqualified from giving evidence in court.

In India, it is recommended to have witnesses who are not related to the person creating the Will. This is to avoid any conflict of interest that may arise due to their relationship with the person. Witnesses should also be individuals who are likely to outlive the person creating the Will, so that they can be available to testify if necessary. Competency includes physical and mental ability to remember and to state vividly detailed information regarding the execution of the Will, if necessary in the future.

Questions that are frequently asked concerning Witnesses in Will Making

Q: Can a beneficiary act as a witness to the Will?

A: As per Section 67 of the Indian Succession Act, in case either of the witnesses to the Will is also a beneficiary, then the gift or benefits which the witness (or his spouse) under the Will receives shall be null and void. However, the Will would not be completely invalid, but only that part of the Will where it has conferred a benefit on that witness will be ruled to be null and void. The rule is mainly limited to Christians and Parsis and is not generally enforced under the personal laws of Hindus, Sikhs, Jains, and Buddhists in India. The reason for this rule is the elimination of any conflict of interest or suspicion of undue influence, and it is advisable to avoid naming beneficiaries as witnesses to the Will to make it legally stronger.

Q: What will happen when a witness is not available during probate?

A: In case the attesting witnesses are dead, lost, or unavailable to testify, Section 68 of the Indian Evidence Act permits a Will to be proved by showing the handwriting of at least one attesting witness and the testator. The courts have affirmed that a Will does not necessarily fail when witnesses are not available, provided that there is adequate alternative evidence and proof exists. This secures the interests and the intentions of the testator even when the witnesses are not available during probate, so that they do not subject the legal heirs to unnecessary suffering.

Q: Is it necessary for the witnesses to sign at the same time as the testator?

A: Indian law, such as the Indian Succession Act, requires the testator’s signature in the presence of two or more witnesses who also sign the Will. While simultaneous signing by all parties is not strictly mandated, witnesses must either see the testator sign or acknowledge the signature before signing themselves. Best practice encourages all parties to sign in one session to avoid possible disputes during probate and ensures the validity and reliability of the Will. Witness signatures must be made while the testator's signature is visible to maintain a clear chain of attestation.

Q: Are you allowed to have witnesses testifying to Wills online, electronically?

A: Presently, Indian regulations mandate physical signatures of the testator and witnesses; since electronic signatures or remote witnessing are not yet legally accepted and recognized in the context of a Will. The Information Technology Act, 2000, does not make Wills a part of valid electronic signatures. While nations across the globe are adopting remote or digital witnessing protocols, India is yet to see any alterations regarding physical presence and requires hand-writing confirmation of Wills in order to be considered a legal document, though there is ongoing conversation surrounding the digitization of Will-making in India.

To ensure Will's validity, harness AasaanWill’s support

Creating a Will with legally sound witness involvement is crucial for its enforceability. AasaanWill offers comprehensive Will-draft services that emphasize correct procedural adherence, including detailed guidance on witness selection and their roles. The platform enhances the Will-drafting experience by providing you guidance in a step-wise manner, so that you end up with the necessary amount of competent witnesses, who sign the document accordingly.

Choosing AasaanWill for Will-drafting means that you avail expert consultation to avoid common pitfalls in selecting witnesses and attestations, etc., which means that the risk of any future legal challenges is reduced. For those families who wish to secure the estate distribution for their children and heirs, AasaanWill ensures that the Will complies with the requirements of the Indian Succession Act, and also assists in offline processes like notarization and registration for enhanced legal protection.