As the name suggests, a will is a declaration that expresses the desires or wants of a person with relation to his property and estate and also provides for its transfer upon his/her death. In ordinary language, succession means inheritance. When a person dies, inheritance or succession follows.
The Hindu Succession Act is the act which states the rules and procedures relating to inheritance applicable to Hindus, Sikhs, Jains, and Buddhists etc. Majority of India follows the Hindu Succession Act, whereas for Muslims Sharia law is prevalent in India. Then is the Indian Succession Act which covers Christians as well as those people who are not covered under the Hindu Succession Act and Sharia Law.
Succession is a very complex process in a diverse and dynamic country like India. There are two types of Succession:
- Testamentary Succession
It is a type of succession in which the deceased had executed a will, and things take place according to the will executed.
- Intestate Succession
It is a type of succession in which the deceased had not executed a will, and things become little complex as what property to be given to whom. When there is more than one heir, the process is complicated.
When a person dies after making a will, it becomes important for the family members to know about the will and act accordingly. In such a scenario, the witness plays a significant role where he/she can ensure the family members about the will. A witness is a person who has witnessed the happening of an event or a crime. In wills, a person who has witnessed the making of the will and signs the will with utmost care is regarded as the witness of a will.
Who can become a witness to a Will
For a person to become a witness, three main components are followed. They are:
- Sound Mind: To become a witness of the will, the person should be of sound mind and should be in the capacity to understand the will and its term.
- Above 18 years of age: The person should be of 18 years or above to be a witness of the will. As in India, legally, a person is considered as an adult after he/she attains the age of 18.
- Confirmation: The witness should be able to confirm the signing of the will by the testator visually so that no question arises in the future.
Friends, neighbours, co-workers are some of the options who can be asked to witness a will. It is essential to know that a person who is related, married to the testator or is a beneficiary of the will cannot be considered for witnessing the will.
The testator can also choose people who are:
- Someone who is reliable and responsible enough to understand the consequences and nature of the will.
- He/she should be an individual and shall have no personal interest in the execution of the will.
- It is advisable to keep a witness who is younger than the testator as the chances of him being present is more likeable.
Who cannot be a witness to a Will
Anyone who has a personal interest in the will is not allowed to be a witness. The following persons cannot become a witness to the will:
- Family members of the testator.
- The spouse of the testator or the civil partner
- Any of the beneficiaries, the beneficiaries are the ones to whom the testator has left something in the will. Such people cannot become a witness.
- Spouses or civil partners of the beneficiaries
- Relatives of the beneficiaries.
A witness to a will is an essential factor, as once the testator it died, the witness will be the one who will confirm about the execution of such will and also will be liable to let everyone know that the will was executed legally with all the other necessary requirements fulfilling. The process of making the will is completed, when both the witnesses of the will, sign it.
Under section 63 of the Indian Succession Act, 1925, a will is required to be signed by two or more witnesses in the presence of the testator, each of whom has seen the testator sign or affix his mark to the will or have received personal acknowledgement from the testator that he himself has signed the will.
Will, at some parts of the country, is still a taboo and people don’t easily decide to make the will unless and until it becomes a necessity. However, with increasing awareness regarding the same, people are now coming forward and investing their time in making a legally enforceable will. It is highly advisable to take legal help from a professional before executing a will, as it can reduce the chances of errors and mistakes.