Suitable witness to a registered will
aman
(Querist) 26 January 2021
This query is : Resolved
Dear Experts
I live with my Father in Meerut House since past 15years. This house is in my Fathers name. (Mother Not in picture she passed away 20yrs back). I have an elder brother who lives separately.
Now my father wants to make registered Will where , he wants to Will this Meerut house fully in my Name.
Even though relations with my elder brother are ok presently , i feel after demise of my father , he may surely challenge my fathers will for some share in this meerut house.
Query - So to cover any such risk/harassment from my elder brother in future ,
A) shall i convince and make my elder brother as 1 of the WITNESS in this registered WILL or
B) shall i avoid involving him in witnesses and make independent witness like family friends and relatives ?
Which scenario would be better to safeguard my interests in the future after demise of my father?
If my elder brother agrees to become witness , can he in future question the sanctity of registered WILL etc etc? may be he can say he was forced to becomes witness or may be he says that my father signed his will in pressure or coercion etc etc?
Or once if he becomes a witness , will he not be able to challenge my fathers will thereby making my position much stronger
Am i making myself more vulnerable by making him a witness or making my position stronger by making him a witness?? Pls suggest what option would be better and how i should go about it.
Thanks in advance
kavksatyanarayana
(Expert) 26 January 2021
A Will can be executed and witnessed by anyone who knows your father and executing the will. The executor of the Will may cancel, modify or rectify it in his lifetime. The will which is the last will whether registered or not will come into force after the death of the testator.
K Rajasekharan
(Expert) 27 January 2021
No doubt the first scenario is undoubtedly far better. Please make him a witness.
If he signs as a witness it would be more difficult for him to challenge the Will later. In such a scenario he will have to estop from his earlier position as a witness and challenge the Will by pleading coercion or undue influence. When he pleads such things he will have to come out with prima facie proof as onus of proving shifts to his side and you will remain more relieved.
If he is not a witness he can plead ignorance of making of the Will, and challenge it telling the court that it was executed by undue influence of you on your father. In such a case he does not need to prima facie prove anything at all other than just non-admitting or plainly challenging the Will. Then the burden of proving the Will will totally fall on you.
You can include more than two witnesses. There can be three or four or even five. It is better to make the young ones who have discreet thinking ability and can depose before the court to tell the truth fearlessly without inhibition. If more witnesses depose for you convincingly the court with prudence can accept it as true or ignore the questionable testimony of your brother.
No prudent court will believe a person who signs a Will and later takes a turn to the other side to tell the court that he was under coercion. In such a case the court can believe that the latter one is a coerced or false statement also. So prudence of the court may work in your favour and it can go by the testimony of the other independent witnesses.
Even though prudence is an essential requirement of a court you can find some courts devoid of it. Luck plays a great role in such matters.
There are many other things you should be conscious of when preparing the Will which should be done in a manner that should not result in any suspicion and by steadfastly following all the rules in their true spirit.
K Rajasekharan
(Expert) 27 January 2021
My article on the role of an attesting witness linked below may give you some understanding of some other aspects of the matter, as well.
It is available at https://www.lawwatch.in/2020/03/14/attesting%20witness/
K.S.Ramaswamy Advocate
(Expert) 27 January 2021
you have not stated whether the house is ancestral or self earned property by your father.
Guest
(Expert) 27 January 2021
K.Rajasekharan --- You had already made Damaging Comments about Our Honorable Judges in the Thread " Mutual Divorce " on 18th Jan 2021.
Guest
(Expert) 27 January 2021
K Rajasekharan -- Again on 19th Jan 2021 you had made Damaging Comments about Learned Advocates also.
Guest
(Expert) 27 January 2021
K Rajasekharan -- Again in one thread had made Damaging Comments about " Advocate Commissioner " appointed by Courts and in the Same Thread you had apologized for the same also.
Guest
(Expert) 27 January 2021
A Person who would make Damaging Comments in the Open Thread about Honorable Judges and Learned Advocate What sort of Comments you would have made in the Websites made by you. This is not the Place for marketing your websites and if at all you wish to market your website you should seek the Permission of the Administration and they would verify and then Decide. Stop marketing your suspicious website here in the form of Replies.
Guest
(Expert) 27 January 2021
For Commenting about Honorable Judges the Limitation Period for filing a Suit would be 3 years and all your Damaging Comments about Honorable Judges , Learned Advocates and Advocate Commissioner Already In Record
aman
(Querist) 28 January 2021
@ Sh Rajasekharan , thanks for the reply sir. The property is self acquired.
I understand your point and advantages in making him a witness .. only question is , would i be not making myself more vulnerable to him in future by making him as witness ? because ultimately the authenticity of a will falls a lot on the witnesses . So if he turns back as a witness and says that i made my father sign the will under pressure at the time of signing etc? will it not make my will even more weak?
If such is the case , i would ignore him as making one of the witnesses and make indepndent ones.
this is the main confusion or i may be wrong . You experts are better judges of this
K Rajasekharan
(Expert) 28 January 2021
I was trying to answer the exact question you have repeat here.
When I answered the neatly drafted query I had an impression that you have some grasp of the evidence act and how the judge makes a balancing act between opposing facts or arguments in a case.
So I used some of the loaded words like estop, onus etc and they bring into fore how a judge should sift the shaft from the grain from the contrary facts produced before them by the opposing parties.
My answer again is make him a witness and allow him to oppose in the court against his own position at the time of execution of the Will, making him an unbelievable character.
So let him approve the execution of the Will now and oppose it in the court later which according to me would make him more vulnerable and unconvincing than otherwise.
If my comment is not convincing to you I am afraid you have not understood my original answer properly as I intended. I have left with no mechanism to convince you more intensely.
Anyway, you are the decision maker. Go ahead as you choose. I have already given my advice based on my understanding of law.
All the best.
aman
(Querist) 29 January 2021
@ Sh rajasekharan , yes sir understood your point now clearly . i am thankful for your feedback and suggestion. will follow it .
Rajendra K Goyal
(Expert) 31 January 2021
You can have a registered will. Witness can be person known to your father.
