Who can be a witness to a will ?

A will is an important legal document that outlines the testator's wishes for how his property will be distributed after his death. The Will must be meticulously carried out in order for it to be legal. The rules for attesting or witnessing a Will in India are discussed in this article, along with who is eligible to serve as one.

The will must be signed by the maker or testator and then attested by two or more witnesses. According to the Indian Succession Act, wills must be attested by a minimum of two witnesses.

So what is the purpose of having a witness in a Will ?

To confirm that the testator has the mental ability and intent to make a Will, it is necessary to have a witness. In the event that the testator's intentions or state of mind are ever called into question, the witnesses will have seen you and your acts throughout this time and may testify in court.

Why is having a witness necessary ?

Those who witnessed you making the will and can attest to its veracity are referred to as witnesses. They may also claim that you made the will of your own free will and while being of sound mind and being fully aware of its contents. If the validity of the will is ever questioned, witnesses may also be asked to testify about its contents.

Who is eligible to testify ?

Adults, or those who are older than 18, may serve as witnesses. When selecting a witness, keep in mind that they should live past you because they might have to attest to your will after you pass away. It's crucial to confirm that your witness is impartial and free of any conflicts of interest. Additionally, it is preferable to enlist a related party rather than a total stranger so that it is clear that reliable persons are involved in the Will-writing process. The greatest option is to pick a person whose name does not appear anywhere in the Will.

How many witnesses are necessary ?

For the Will's attestation, you need a minimum of two witnesses, but there is no maximum. If you are concerned about the survival of your witnesses, you can also have more than two.

So now the question arises, who can be the witnesses in a Will ? 

There are no rules regarding who you can and cannot be a witness however, there are certain things to keep in mind -

• Age and Capacity: Generally speaking, witnesses must be adults who are of sound mind and are not legally disabled. This implies that they should be able to comprehend the significance of the document they are witnessing as well as its nature.
• Unbiased: Witnesses shouldn't have a stake in the will personally. This indicates that they shouldn't be the will's beneficiaries or potential beneficiaries. A conflict of interest may arise and the will may be challenged if a witness stands to get something from the will.
• Number of witnesses: The number of witnesses needed can vary depending on the jurisdiction, however two or three witnesses are frequently needed. Some locations could need more.
• Information regarding the Witnesses: On the will, the witnesses are typically required to sign their complete names, addresses, and other identifying information.
• Self-Interest: In some jurisdictions, a witness's gift may be void or nullified if they are also a beneficiary of the will. As an alternative, they might be barred from testifying in order to avoid conflicts of interest.
• Notary Public: In some areas, having the will notarized in addition to having witnesses may be required. A notary public is a government-appointed representative with the power to witness signatures and perform oaths. The document gains an additional level of validity by notarization.
• Presence: Witnesses must be present when the testator signs the will in order for it to be valid. They must really see the document being signed. The testator must tell the witnesses that the paper they are holding is, in fact, their will.
• Signature: The witnesses must sign the will after the testator has done so. It is customary for them to sign alongside one another to attest to their presence as the testator signed. As proof that they were there and saw the act, their signatures are used.
• Number of Witnesses: Depending on the jurisdiction, different witnesses may be needed. Two or three witnesses are typically needed in most countries, but some jurisdictions may require a different number. Having several witnesses increases the validity of the will.

But is it possible for a child who hasn't received any bequests from their parents to sign the will as a witness ?

Legal authorities claim that a legal heir's ability to serve as a witness in the will is not prohibited by succession laws. Here, it's crucial to remember that India's succession laws are based on religion. Consequently, for a Muslim, the regulations that apply to Hindus will be different.

Moreover, can a beneficiary serve as a witness in a will ?

According to Section 63 of the Indian Succession Act, 1925 ("Succession Act"), every testator who is not a soldier serving on an expedition or engaged in combat, an airman serving in a similar capacity, or a mariner at sea shall execute his will by

• Signing the will and,
• Having the will witnessed by at least two witnesses, each of whom saw the testator sign the will, is necessary.

It is crucial to consider whether the attestation of the will by a beneficiary as a witness can be considered an adequate compliance with Section 63 of the Succession Act because the attestation of the will by two witnesses is a mandatory requirement for an execution of a valid Will by any Hindu, Buddhist, Sikh, or Jains

A beneficiary and the beneficiary's spouse are not permitted to serve as witnesses to a will under Section 67 of the Indian Succession Act, 1925. However, this clause does not apply to wills written by Hindus, Buddhists, Sikhs, or Jains. It is applicable to testamentary dispositions made by anyone other than the testator, such as Christians and Parsis

Although there is no legal requirement that a beneficiary also serve as a witness to the will, it is typically advised that the testator—the person who is creating the will—ask one of the legal heirs, a relative, or a friend who is not named as a beneficiary, to attest the document in order to minimize any potential challenges or conflicts.