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Prateek Mathur (Engineer)     10 April 2014

Beneficiary is a witness in a will dated 26.6.2003

Hi

 

I have a will dated 26.06.2003. My aunt was one of the two witness in the will but was also a beneficiary in the will. Please tell me if my will stands valid or not. There were only two witnesses in the will one by aunt and one other. Please help me as I have to present a reply for this on 15thApr.

 

Regards

Prateek



Learning

 5 Replies

Prateek Mathur (Engineer)     10 April 2014

Also, the testor died in year 2004.  Just in case of any help.

Anand Bali Adv. (Advocate Solicitor & Consultant)     25 May 2014

No your Will does not stand valid. However if only one attestator  assertains that the will was executed in front of him and the testator and the other attestator has signed before him it can be considered ignoring the basis ingredients of the Will that there should be at least two Attesting wittnesses other than the beneficiory/s 

Arvind Manghirmalani (Advocate High court Bombay Trained mediator 91-9869617090 9594255075)     27 May 2014

I don't agree with Mr. anand Bali, advocate. Witnesses are not necessarily  to know the contents of the will. only requirement is that testator and witnesses shall sign the document in presence of one another. Any one witness to the will  cab prove the will. Your aunt is interested witness as she is also beneficiary in a will. therefore, you first prefer to examine the other witness. 

Arpit lalan (Legal Consultancy/Advocate)     27 August 2014

i agree in toto with Mr. Arvind. The witness are not supposed to know the contents of the Will. 

Anand Bali Adv. (Advocate Solicitor & Consultant)     27 August 2014

In some way my above ans. is treated with its wrong meanings which I want to clarify like as :

Kindly see the Sec 67 of the Indian Law of the Succession  which States: "A Will shall not be deemed to be insufficiently attested by reason of any benefit there by given either by way of bequest or by way of appointment to any person attesting it, or to his her wife or husband; but the bequest or appointment shall be void so far as concerns to the person so attesting, or the wife or Husband of such person, or any person claiming under either of them."

To clarify above; "The section is clear that an attesting witness will forfeit the benefit given by the instrument  he is attesting."

The reason of this prohibition is not the incompetency to give evidence on the ground of interest which has ceased both in England  and India to be disqualification, but it is. I think that the suspecion of the chance of the possible collusion which is favovered by the prospect of benefit.

Though the gift by will to an attesting witness is utterly null and void; it may be rendered effectual, if the Will is republished by the codicil referring to a Will  but not attested by the legatee, and thus benefit will not be lost to the legatee by his subsequent attestation of the second Will Apply the rule of Gurney Vs. Gurney and Re Marcus 1887,57 L>T>399; thus benefit will not be lost to the legatee by his subsequent attestation of the second Will Trotter Vs trotter.

Theory given:- Each witness attests only the instrument to which he puts his name. So where a Will consists of separate sheets of paper , executed by the Testator , but separately attested , a legatee under one of them does not forfeit his legacy because he attested one or more of the other sheets.So also a gift by a Will to the Attesting witness of a codicil in not invalid.

The sons of the Testator put their signatures to the Will, each signature being put under the word "Witness" . Now the question is whether the bequest in their favour is Void? The Court held: The argument of a bench of this court in the Kalakankar case ; Narain Singh Vs.Dy. Commissioner or Pratabgarh,55 Ind. Cas896;7 OL,9 would indicate from the report at page 119 that it was open to a party to rebut the presumption arising from a fact of the document that the person who perported to be attesting witness were really not such". A legatee signing the Will as an attesting witness does not forfeits all the benefits under the Will under this section.

Witness not disqualified by interest or by being executor Sec 68 The Indian Succession Act 1925.


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