An attesting witness is a person who puts his sign or mark on a deed or
will at the request of its creator, immediately after its execution, for
the purpose of proving and identifying that it is executed by the maker
of it. Unless the maker of the document wants the witness to attest it,
the latter will not be considered an attesting witness even though he
may have seen the persons executing it.
In the case of a Will, an attesting witness is the one who witnesses the
testator making the Will by signing it. The execution and attestation
are clearly distinct formalities. The former is the act of the parties;
the latter is of the witnesses.
In attestation clause of the Will, the witnesses certify that the
instrument has been executed before them.
Sign or mark means
The term “sign”, as per Section 3 (56) of the General Clauses Act 1897,
includes not only “mark” but grammatical variations and cognate
expressions of both terms, as well.
Signing a Will, as per Section 63 of the Indian Succession Act, means
sign his name or affix his mark himself or get it signed by some other
person in his presence and by his direction.
Sign is therefore a mark to authenticate a document as a binding one on
the person whose sign or mark is so written or affixed on it.
The witnesses are expected to see the testator sign the Will and then
they sign it by themselves. Attestation of a Will implies something more
than merely putting a signature in the presence of the testator by
someone who has seen the testator sign. A Will not attested is not a
legally valid one.
Role of an attesting witness
Witnesses should be adults (of above 18 years of age) as per Black’s Law
Dictionary, even though this has not been specifically mentioned in the
law pertaining to Wills in India. A person below 18 years of age is not
considered as a person of mental ability and capacity practically by any
law enacted in India. In the case of a Will a minor is prevented from
making it. Therefore a minor should have no power to sign a Will as a
witness by applying the doctrine of “due process”.
The dictionary again adds that the witness must verify that the signer
of the legal document is not an imposter. The witness should be of sound
mind and not under the influence of any drugs. The ideal witness has
known the signers of the document for a long time and does not have any
financial interests in regard to the document.
The witnesses, during the process of proving the Will, can be examined
so as to know whether the testator has the intention and sound mental
capacity to make the Will when they are called upon to testify the
testator’s signature in the Will. The witnesses must be present when the
testator is signing the Will. A witness, who attests a Will, basically
ensures that it is the testator who signed the Will in his/her presence
and he can testify its authenticity. In case a witness is unable to see
the testator sign the will he should receive from the testator a
personal acknowledgement of his signature or mark made in the Will.
Therefore it is possible that one witness may see the testator signs the
Will and another witness must receive from the testator an
acknowledgement of his signature, before attesting the document. The
sign of the witness is an implied acknowledgement by him of the
execution of the Will by the testator.
The witness is needed to testify the validity of the Will when someone
questions the legality of the Will. They can state whether the testator
was of sound mind while making the Will and are clearly conscious of the
contents of the Will. The attesting witness can observe the actions of
the testator during the process of execution of the Will. They can also
prove that the Will was made out of the testator’s free choice.
Witness not to know the contents
However, the attesting witness is not expected to know every detail of
the contents of the will. His role is to make it clear that the Will was
created by the person in question and he was of sound metal capability
to make the Will. A Will requires that not less than two witnesses
signed in it, in order to be held valid in law.
The beneficiary of the Will cannot be a witness. A person who has
conflict of interest cannot be an attesting witness.
It should be kept in mind that the witness (at least one of them) should
survive the testator as they may need to testify the Will after his
death. As per Section 71 of the Indian Evidence Act if the attesting
witness denies or does not recollect the execution of the document, its
execution need to be proved by other means.
Similarly, as per Section 67 of the Indian Evidence Act, if a document
is alleged to be signed by any person the signature of the said person
or his handwriting must be proved. This has to be proved as provided for
in Sections 45 or 47 of the Indian Evidence Act based on the opinion of
the experts or the persons acquainted with the concerned handwriting.
Witness to prove soundness of testator’s mind
It is in fact the duty of the one who propounds the Will to prove that
the execution of the Will was due and valid in law, for which witness
has a key role to play as testator is no more.
The propounder, with the help of the attesting witnesses, should remove
the suspicion surrounding the execution of the Will by cogent and
satisfactory evidence. He has to prove that the testator had a sound
state of mind, understood the nature and effect of the depositions, and
put his signature to the document based on his own free will.
Witness makes property distribution perfect
The testator of a Will uses the instrument to distribute his property,
name an executor, name guardians for children, regularise debts, and
much more. He decides based on the document that who gets his property
when he dies. When a person dies without a Will or other plan for
property distribution, intestate succession laws will come into play to
decide which family member will inherit the property in what proportion.
The real role of an attesting witness is to provide evidence to make the
property distribution plan of the testator work as per his wishes.
Therefore an attesting witness is not just a ritualistic signer of a
document and his act of signing is not just a mechanical one. The
attesting witness is a key player in putting the plan of action of the
testator into reality after the latter’s death.