Editorial

Source: Mint

Introduction

In India, the validity of a will is subject to compliance with the Indian Succession Act, 1925 (ISA), and the Indian Evidence Act, 1872 (IEA). Section 2 (h) of ISA defines “will” as the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

What are the Major Legal Provisions Regarding Will?

• Section 32 (6) of IEA: Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. ––
  • Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: ––
    • or is made in will or deed relating to family affairs.–– When the statement relates to the existence of any relationship by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
• Section 281 of ISA: Verification of petition for probate, by one witness to will.
  • Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) in the manner or to the effect following, namely: —
  • “I (C.D.), one of the witnesses to the last will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark) thereto (or that the said testator acknowledged the writing annexed to the above petition to be his last will and testament in my presence).”

What is the Importance of Witness Testimony?

• Section 118 of the IEA mentions who may testify or in other words who can be a competent witness.
  • It states that All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
  • Explanation. –– A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
• Witnesses play an important role in validating a will.
• If a document requires attestation, it cannot be used as evidence until at least one attesting witness is called upon to prove its execution.

Conclusion

Wills serve as vital instruments in estate planning, facilitating the orderly distribution of assets upon the testator's demise. However, their validity hinges on strict adherence to legal requirements, including the presence and testimony of witnesses. Witnesses shoulder an important responsibility in ensuring the authenticity of the will and must comprehend the gravity of their role in the legal process.