Witnessing a will: Your legal duties and responsibilities

I've been asked to sign as a witness for my friend's will. What are the implications and responsibilities of this role? Are there specific legal obligations or requirements I should be aware of?

—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 will not be alive, therefore, 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, (a) The testator/ your friend has to sign his will; (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary; (c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will; (d) 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 the purpose of 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 witnesses, at least, has been called for the purpose of proving its execution, if there be an attesting witness alive.

 However, in the absence of availability/death of both attesting witness, what is to be proved as the attesting witness is concerned, is, that the attestation of one of the attesting witnesses is in his handwriting. 

Aradhana Bhansali, Partner, Rajani Associates.