A common point of confusion during the creation of a Will is the eligibility of witnesses, especially when they are related to the person making the Will (the testator) or the beneficiaries. Let’s consider a typical scenario: Mrs. Anjali Mehra, a widow residing in Nagpur, wishes to draft her Will, bequeathing all her assets to her son, Mr. Karan Mehra. She has been advised that blood relatives cannot act as witnesses. This leads her to question whether her late husband’s nephews, who are Karan’s cousins and not beneficiaries under the Will, can legally attest the document. This is a critical question, as improper attestation can jeopardize the validity of the entire Will or parts of it.

Advice in such cases

The advice that “blood relatives cannot be witnesses” is a common misconception and an oversimplification of the law. The key restriction is not based on relation but on whether the witness is a beneficiary in the Will.

• Select Independent Witnesses: The best practice is to choose witnesses who are not beneficiaries under the Will. This helps prevent any future allegations of undue influence or coercion.
• Relatives Can Be Witnesses: A relative who does not receive any benefit (bequest) from the Will is perfectly eligible to be an attesting witness. In the scenario above, Mrs. Mehra’s nephews (Karan’s cousins) can legally witness the Will, provided they are not named as beneficiaries.
• Beneficiary as a Witness: If a person who is set to inherit from the Will (a beneficiary) signs as a witness, the Will itself does not become invalid. However, the bequest or gift to that specific witness becomes void. The witness essentially forfeits their inheritance.
• Ensure Proper Attestation: The witnesses must sign the Will in the presence of the testator. The testator must also sign or affix their mark to the Will in the presence of the witnesses. All parties do not need to be in the same room at the exact same time, but there must be a clear line of sight and acknowledgement of the signatures.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

The primary legislation governing Wills in India for most communities is the Indian Succession Act, 1925.

• Section 63 of the Indian Succession Act, 1925: This section outlines the rules for the execution of a Will. It mandates that the testator must sign or affix their mark to the Will, and this signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time. The witnesses must then attest and sign the Will in the presence of the testator.
• Section 67 of the Indian Succession Act, 1925: This is the most crucial section for this issue. It states that a Will shall not be deemed insufficiently attested by reason of any benefit given to an attesting witness or their spouse. However, the bequest or gift to such a person (the attesting witness) or their spouse shall be void. This ensures the witness’s testimony remains impartial, as they no longer have a financial stake in the Will’s validity.

If you are the complainant

If you are the person making the Will (testator) or a beneficiary concerned about its validity, proactive steps are essential.

• Clear Drafting: Ensure the Will is drafted by a legal professional to be clear, unambiguous, and legally sound.
• Careful Selection of Witnesses: Choose two adult witnesses of sound mind who are reliable and, ideally, younger than you. Make sure they are not beneficiaries. While relatives can be witnesses, choosing non-beneficiary friends, neighbours, or professionals like a doctor or a chartered accountant can add a layer of impartiality.
• Proper Execution Ceremony: Follow the procedure under Section 63 strictly. Have the testator and witnesses all sign in each other’s presence. It is also advisable to video-record the signing process as additional evidence of free will and proper execution.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

If you are a beneficiary whose inheritance is at risk due to an issue with a witness, or if you were made a witness to a Will in which you were also a beneficiary, you are in a difficult situation.

• Void Bequest: If you signed as a witness on a Will that grants you an inheritance, that specific inheritance is legally void under Section 67. The rest of the Will remains valid for other beneficiaries.
• Challenging a Will: If you wish to challenge a Will on the grounds of improper attestation (e.g., the witnesses did not sign in the testator’s presence), you will need to file a suit in the appropriate court, typically during probate proceedings.
• Defending a Will: If you are an executor or beneficiary of a Will being challenged, you must prove its valid execution in court. This involves producing at least one of the attesting witnesses to testify.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

The creation, execution, and probate of a Will are civil matters. The police have no role or jurisdiction in determining the validity of a Will or the eligibility of its witnesses. Police involvement would only occur if there are allegations of a criminal offence, such as forgery of the Will, coercion, or criminal intimidation to force someone to sign. In such cases, a complaint could be filed, and the police would investigate under the relevant provisions of the Bharatiya Nyaya Sanhita (BNS), but this is separate from the civil court’s process of validating the Will.

FAQs people normally have

• Can my son, who is my only heir, be a witness to my Will?
  No. If he signs as a witness, the Will would be considered validly executed, but the inheritance left to him would become void under Section 67 of the Indian Succession Act.
• Can my brother, who is not getting anything in my Will, be a witness?
  Yes. Since your brother is not a beneficiary, he is a perfectly valid witness.
• Do the witnesses need to read the contents of the Will?
  No. The witnesses are not required to know the contents of the Will. Their legal duty is only to witness that the testator has signed the document in their presence and that they, in turn, have signed it in the testator’s presence.
• What if one of the witnesses dies before the testator?
  The Will remains valid. However, it is a good practice to create a new Will or a Codicil with new witnesses to avoid difficulties in proving the Will in court later.

What evidence is required?

To prove a Will in a court of law (a process called probate), the following is generally required:

• The Original Will: This is the primary piece of evidence.
• Testimony of an Attesting Witness: The law requires that at least one of the attesting witnesses be called to testify in court to prove that the Will was executed according to legal requirements.
• Affidavit of the Witness: In non-contentious cases, an affidavit from the witness may suffice.
• Other Proof: If both witnesses are deceased or cannot be found, the court may allow other evidence to prove the signature of the testator and the witnesses, such as testimony from someone familiar with their signatures.

How long will the investigation take?

There is no police “investigation” in these matters as they are civil in nature. The court process to validate a Will is called probate. The duration of probate proceedings can vary drastically:

• Uncontested Will: If no one objects to the Will, obtaining probate from a court can take anywhere from 6 to 12 months, depending on the court’s schedule.
• Contested Will: If the Will is challenged by a legal heir or another party, the case turns into a full-fledged lawsuit. Such contentious proceedings can take several years, sometimes even decades, to be resolved through the Indian judicial system.

Advocate Sudhir Rao, Supreme Court of India