A person who writes a will (the scribe) can also serve as one of the legally required attesting witnesses. However, for their signature to be valid as an attestation, they must sign with the express intention of witnessing the testator’s signature, not merely to authenticate their role as the scribe. This principle was clarified by the Kerala High Court in Varghese C Philip Kutty v. Varghese Mathai [2025:KER:42170].
Intent to Attest Makes it a Crucial Element
The court emphasized that the role of a scribe is distinct from that of an attesting witness. A signature placed on the will under the designation “Scribe” does not automatically qualify as an attestation.
For a scribe to be considered a valid witness, they must sign with the clear intention—known in law as animus attestandi—to bear witness to the fact that the testator signed the will in their sound state of mind. If this intent is present, the scribe is not disqualified simply because they also wrote the document.
Statutory Requirements for a Valid Will
Under Section 63 of the Indian Succession Act, 1908, a will is valid only if:
- It is in writing.
- The testator signs or affixes their mark to it.
- It is attested by at least two witnesses.
- Each witness sees the testator sign (or receives a personal acknowledgment of the signature) and signs the will in the testator’s presence.
Th Suspicious Circumstances Scribe May Create
While a scribe can be a witness, certain situations may raise a “suspicious circumstance” that requires the person proving the will (the propounder) to provide a clearer explanation to the court.
For example, if the scribe is also a major beneficiary under the will, or is closely related to a beneficiary, the court will scrutinize the will’s execution more carefully.
When the scribe acts as a witness it may add to the suspicion that the propounder must dispel to prove the genuineness and absence of undue influence in a will.
