Report No. 110
III. Formalities-Signature
13.5. Section 63, clause (a)-Signature.-
We now come to the formalities required for the execution of wills. The first requirement, indicated by clause (a) of section 63, is that the testator "shall sign or shall affix his mark to the will, or it shall he signed by some other person in his presence and by his directions." It should be noted that while the formality of signature can-to use a loose but expressive word-be delegated, the formality of affixing the mark cannot be delegated1. The testator himself must affix his mark.
1. Radhakrishna v. Subraya, ILR 40 Mad 550.
13.6. No particular form of signature required.-
No particular form of signature or mark is, however, required. Thus- contrary to the popular belief-affixation of a thumb mark is not necessary, and there could even be a pen mark1. A rubber stamp mark by the testator would also be valid, if the testator is in the halest of using such a mark2.
1. Ram Nath v. Ram Nagina, AIR 1962 Pat 481.
2. Nirmal Chander v. Sarat, 1898 ILR 25 Cal 911.
13.7. Completeness of signature.-
In England, interesting questions seem to have arisen as to the completeness of the signature. For example, if the testator attempts to sign, but fails to complete the signature and dies, it can be shown that the person was capable of executing the document and fully appreciated its contents, and that what he wrote was intended to be his signature and that the will was duly attested1.
1. Goods of Chaleraft (in re:), (1948) 1 All ER 700.
13.8. Meaning of "Some other person".-
The provision in section 63, clause (a) for signature by any other person under the directions of the testator raises an interesting question as to the precise scope of the words "other person". In England, any of the attesting witnesses may (where the testator directs him to do so) also sign on behalf of the testator in his presence "and by his direction".
In India, however, the words "some other person" in section 63(a) have been interpreted as meaning a person other than the testator and other than the attesting witnesses1-2. In India, therefore, if the testator himself does not sign the will, then, besides the "other person" signing under section 63(a), there must, under section 63 (c), be two witnesses who should sign the will in the presence of the testator3.
1. Avabai v. Pestonil, 11 Born HC Reports 87.
2. Radhakrishna v. Subraya, ILR 40 Mad 550 (556).
3. Hemlota (in re:), 1883 ILR 9 Cal 226 (229).
13.9. Recommendation to amend section 63(a) so as to allow attestation by persons signing on behalf of testator.-
This position creates unnecessary complications and the double formality is not really required on any principle. Accordingly, we recommend that the law should be made 'simple by adding an Explanation to section 63(a) as follows:
"Explanation.-The other person signing for the testator under clause (a) is competent to cutest the will under clause (c)."
13.10. Section 63(b)-Placing of signature.-
The placing of the signature in a will is dealt with in clause (b) of section 63. It reads:
"(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will."
13.11. English Law (1837 Act).-
It will be noted that section 63(b) contains no rigid rules as to the place where the signature must appear on the will. In England, on the other hand, statutory provisions on the subject are more rigid1. The Wills Act, 1837, lays down that the will must be signed "at the foot or end thereof."
Section 9 of the Wills Act, 18372 so far as is material, reads as under before its recent amendment:-
"No will shall he valid unless it shall be in writing, and executed in manner hereinafter mentioned; (that is to say), it shall be signed at the foot or end thereof by the testator and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary".
1. Section 9, Wills Act, 1837, as amplified by section 1, Wills Act, Amendment Act, 1852.
2. Section 9, Wills Act, 1837 (Eng.).
13.12. Act of 1852.-
Section 1 of the Wills Act Amendment Act, 1852, gave a considerable extension to the above words, "at the foot or end thereof, by providing: "Every such will shall, so far only as regards the position of the signature of the testator be deemed to be valid within the said enactment, as explained by this Act, if the signature shall be so placed at or after, or following, or under, or beside, or opposite, to the end of the will that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will".
The section goes on to provide that the enumeration therein of certain circumstances by which no such will shall be affected shall not restrict the generality of the above enactment, but that no signature under the earlier Act (1837) or this Act (1852) shall be operative to give effect to any disposition or direction which is underneath the signature or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made.
13.12A. Recent English reform as to formalities.-
In England, by sections 17-28 of the Administration of Justice Act, 1982 (Chapter 57), certain amendments have been made in the law of wills. These cover the formalities for signing and attestation, effect of marriage and divorce on wills, effect of bequests to children etc. who pre-decease the testator, rectification and interpretation of wills, and international wills. Such of the amendments made as are relevant in the context of Indian law will be referred to in the discussion in the Report, at the appropriate place. At this stage, it would be convenient to mention, in brief, certain important points.
Section 9 of the Wills Act, 1837, concerned with the formal requirements for making wills, has been revised in England by the Administration of Justice Act, 1982, implementing the recommendations of a Report of the Law Reform Committee1. The signatures on a will (under the revised section) will not appear "at the foot or end" of the will, provided the testator intended by his signatures to give effect to the will. Further, it is not now necessary that each witness should sign the will. This requirement of the earlier law is relaxed to allow the witness either to sign or to acknowledge his signature in the testator's presence. Revised section 9, Wills Act, 1837 reads as under:-
"Signing end attestation of wills.
9. No will shall be valid unless-
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either
(i) attests and signs the will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no particular form of attestation shall be necessary".
1. Law Reform Committee, 22nd Report (Making and Revocation of Wills) (1980), Cmd. 7902, paras. 2.01 to 2.13.
13.13. Indian Law.-
In India, all that is required is that the signature should be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.1-2
In fact, in India, documents are sometimes signed by the parties on the top. As the section does not lay down any positive rule as to the place where the signature is to be put, that practice may be regarded as sanctioned. The signature must, of course, have been made with the object of authenticating the instrument.
1. W.C. Banerjee Hindu Wills Act, p. 6, cited in N.D. Basu's The Law of Succession, (1957), p. 132.
2. See also Sabitri v. Savi, (1892) 19 CWN 1297.
13.14. Further signature contemplated.-
What is paramount is the 'intention'. It would seem that if the testator contemplated a further signature which he never made, the will must be considered as unsigned. But a signature originally made without such object may afterwards be adopted by the testator as his final signature; such would be the presumed intention, if the testator acknowledged the instrument to the attesting witnesses that the instrument was his will without alluding to any further act of signing; and under the present Act, which omits the words "on the face of the will", extrinsic evidence of such intention would seem to be admissible1.
A testator's signature at the commencement of the will, when the witnesses signed the same, and the fact of his admission to several of the witnesses that the papers signed by them was his last will and testament, amounts to sufficient 'acknowledgment' of his signature to his will2.
1. Stoke's Succession Act, p. 31, cited by N.D. Basu The Law of Succession, (1957), p. 132.
2. Amarendra v. Kashi, 1900 ILR 27 Cal 169.
13.15. Unsigned portion of a will.-
The question of the effect of unsigned portion of a will came up in England for consideration in 1960. Among the various points which arose for decision in Re Little, (1960) 1 All ER 387. (deceased), one was: "In what circumstances will the court admit to probate an unsigned portion of a will as forming part of the signed portion of the will?"
The answer, according to the decided cases1, would be that the courts will not allow any document to form part of a will which was not physically or otherwise connected to the signed portion of the will at the moment of its signature.
1. See note in (1960) 230 Law Times 33.
13.16. No change needed in section 63(b).-
The above discussion, though not necessitating any amendment of clause (b) of the section, elucidates several important points.
Back
