When a parent decides to pass on his or her assets such as property, shares and mutual funds to one child, they can ask the other children to act as a witness to the will. The Indian Succession Act, 1925, does not bar legal heirs from becoming a witness to a will (except in case of specific religions).
But can a legal heir who is also a witness to the will, challenge the will at a later stage?
Heena Chheda, Partner, Economic Laws Practice, says, "The witness can challenge the will on suspicious circumstances. A circumstance is considered suspicious when it is not normal, or what is done is not normally expected in a situation, or is not expected of a normal person to make such an improbable or unfair disposition of property or an unjust exclusion of the legal heir and particularly his/her dependents, or when there are other indications in the will to show that the testator's mind was was not free while preparing the will. The onus is on the legal heir challenging the will to offer a believable and convincing explanation of the suspicious circumstances surrounding the preparation of the will. It will depend on the facts and circumstances of each case."
Manmeet Kaur, Partner at Karanjawala & Co, says a legal heir who is also a witness to a will can challenge the will on all grounds in accordance with the law prescribed under the Indian Succession Act. "However, since the will would bear the legal heir's signatures as a witness, it must be proven that such signatures were obtained under duress, undue influence, by fraud, etc."
What laws say about a witness signing a will
The Indian Succession Act, 1925, mandates that a will has to be attested by two or more witnesses. Chheda says, "It is not a requirement of the law that the attesting witness must know the contents of the will. The only requirement of the law is that the testator (maker of the will) should sign the will in the presence of two or more witnesses and the witnesses should also sign the will in the presence of the testator."
What happens if the will is not signed by the testator in the presence of witnesses? In this case, the witnesses should receive personal acknowledgement from the testator that the will has been signed by the testator, says Kaur. A personal acknowledgement of signing the will is not restricted to a statement or document acting as proof for the witness. An acknowledgement can also be in the form of words or conduct of the testator, Kaur adds.
Grounds on which a legal heir can challenge a will
Some of the grounds on which a legal heir can challenge the validity of will are:
a)If the will was made under undue influence, i.e., under excessive pressure from a third party
b)If the testator of the will did not know the contents of the will at the time of signing it
c)If the challenger has proof that the will was signed fraudulently or the will was actually not signed by the testator
d)If the testator was of unsound mind at the time of making the will
e)Lack of testamentary capacity to make the will. For instance, a minor cannot make a will.
When the validity of a will is challenged in court, the judicial authority will call at least one of the witnesses.
Kaur says, "Such a witness must make a statement on oath regarding the signing of the will by the testator. In such a situation, the legal heir challenging the will is also a witness to the will. Hence, other witnesses will be called upon to establish the validity of will."
What succession act says about witness to a will
The Indian Succession Act allows a beneficiary mentioned in the will to serve as a witness. However, one must remember that succession laws in India are religion specific. A beneficiary or spouse of a beneficiary can be a witness to a will if it is created by a Hindu, Buddhist, Sikh, or Jain. However, Section 67 of the Indian Succession Act (not applicable to Hindu, Buddhist, Sikh or Jain) does restrict a beneficiary or spouse of beneficiary from being a witness to a will in case of other religions.
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