Can a beneficiary in the WILL become a witness?

As per Section 63 of the Indian Succession Act, 1925 (“Succession Act”), every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will by

• • Signing the Will;

and

• • Getting the will attested by two or more witnesses, each of whom has seen the testator sign the will.

As the attestation of the Will by 2 witnesses is a mandatory requirement for the execution of a valid Will by any Hindu, Buddhist, Sikh or Jaina, it is important to examine whether attestation of the Will by a beneficiary as a witness can be considered as an adequate compliance of Section 63 of the Succession Act.

That as per Section 67 of the Succession Act, A will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting, or the wife or husband of such person, or any person claiming under either of them. However, if a beneficiary has attested a Will as a witness in that situation, the bequest made to such witness or to his or her wife or husband under the Will shall become void but the Will shall be construed as validly executed.

Now, it is imperative to ascertain whether the provisions of Section 67 of the Succession Act is applicable on the execution of a Will by any Hindu, Buddhist, Sikh or Jaina.

Section 67 of the Succession Act falls under Part VI of the Succession Act.

That Section 57 of the Succession Act which also falls under Part VI, states as under:

The provisions of this Part (Part VI) which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply—

(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

(b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits,

(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):]

Provided that marriage shall not revoke any such will or codicil.

It is important to note that in the list of the sections provided under Schedule III, Section 67 of the Succession Act is not included.

Further, as per the provisions of Section 58 of the Succession Act which also falls under Part VI, the provisions of Part VI shall not apply to testamentary succession to the property of any Muhammadan nor, save as provided by section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jaina; nor shall they apply to any will made before the first day of January, 1866.

Therefore, on perusal of the provisions of Section 57, 58, 63, 67 and Schedule III of the Succession Act, it is apparent that even the provision of Section 67 of the Succession Act does not apply on the Wills made Hindu, Buddhist, Sikh or Jaina.

Furthermore, as per the provisions of Section 68 of the Succession Act, no person, by reason of interest in, or of his being an executor of, a will, shall be disqualified as a witness to prove the execution of the will or to prove the validity or invalidity thereof.

In view of the above provisions of the Succession Act, it can be concluded that a beneficiary in a Will made by a Hindu, Buddhist, Sikh or Jaina can also attest the Will as a witness and even the bequest made to such witness or to his or her wife or husband will be valid.

Though there is no legal embargo, it is still advisable and recommended that the Testator of the Will should avoid making the beneficiary a witness of the Will as the witness becomes the interested party in the Will which creates more doubts on the credibility of the free and fair execution of the Will in case of any litigation or challenge to such Will in future.