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.