A witness has no powers over the will or the estate, unlike an executor.
The witness’s role is evidentiary: to validate execution of the will and, if needed, prove it in court.
The Act has no list of “duties”; they follow from Section 63, Sections 59 and 61, and the evidence law.
2. Attestation Requirements: Section 63
At least two witnesses must attest the will.
Each witness must have seen the testator sign or affix his mark, or seen another person sign in the testator’s presence and by his direction.
Alternatively, each witness must have received a personal acknowledgment of the signature or mark from the testator.
Each witness must sign in the presence of the testator.
The witnesses need not be present together at the same time.
No particular form of attestation is required.
3. Duties of an Attesting Witness
Witness the execution. See the testator sign, or receive his personal acknowledgment, before attesting.
Attest with intent. Sign with the intention of attesting, not as a mere bystander.
Sign in the testator’s presence. Put his own signature while the testator is present.
Observe capacity and free will. Sound mind (Section 59) and absence of fraud, coercion or importunity (Section 61) are grounds on which a will stands or falls; courts rely on the witness’s evidence on these points.
Be available to prove the will. Depose to the execution in probate or other proceedings if called.
4. Who May Act as a Witness
Beneficiary or beneficiary’s spouse: May attest, and the will stays valid, but the bequest to that witness or his or her spouse is void (Section 67).
Executor: Not disqualified from being executor merely because he attested the will (Section 68); an independent witness is still preferred.
Age and capacity: No age limit in the Act, but the witness must be competent to give evidence; a major [minimum age 18 yrs, maximum can be anything] of sound mind is the safe choice.
5. Role in Proving the Will
A will cannot be used as evidence until at least one attesting witness, if alive and able to testify, is called to prove execution.
This rule is now in the Bharatiya Sakshya Adhiniyam, 2023 (BSA), replacing the Evidence Act, 1872.
BSA s. 67 (earlier s. 68): Proof of execution of a document required by law to be attested.
BSA s. 68 (earlier s. 69): Proof where no attesting witness can be found.
BSA s. 69 (earlier s. 70): Admission of execution by a party to an attested document.
BSA s. 70 (earlier s. 71): Proof when the attesting witness denies or does not recollect execution; other evidence may be used.
Registration of a will does not dispense with proof of attestation.
6. Summary
Powers: None.
Core duty: See or receive acknowledgment of the testator’s signature, then sign in his presence.
Minimum witnesses: Two.
Beneficiary as witness: A bequest to a witness or the witness’s spouse is void (Section 67).
Later role: Appear in court and prove execution; at least one witness must be called (BSA s. 67).
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