What are the legal obligations of being witness to a friend’s will?
—Name withheld on request
A will is an instrument of testamentary disposition of property whereby one transfers or bequeaths his property to the named beneficiaries on his death. At the time of testing the will for its validity, your friend—the testator, shall not be alive. A will is required to fulfil the requirements under the relevant provisions of Indian Succession Act, 1925 and the Indian Evidence Act, 1872.
For this, the testator has to sign his will and it is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary. Besides, each of the attesting witnesses must have seen the testator sign or affix his mark to the will. Also, each of the attesting witnesses shall sign the will in the presence of the testator. However, the presence of all witnesses at the same time is not required.
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For proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined. The law provides that if a document is required by law to be attested, it shall not be used as evidence until one of the attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive.
If one attesting witness is examined and he fails to prove the attestation of the will, there shall be deficiency in meeting the mandatory requirements of the relevant provisions of the Evidence Act and validity of the will shall fail. Therefore, a witness has to understand the importance of being a witness to the will.
Aradhana Bhansali is partner, Rajani Associates.
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