Report No. 110
13.17. Section 63(c)-Attestation.-
After signature, the next important formality is of attestation, Clause
(c) of section 63 deals with attestation of a will in these terms:
"(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
13.18. Reasons in support of attestation.-
Before entering into a discussion of points of detail concerning clause (c), we must deal with a basic question concerning the requirement of attestation. Is the requirement of attestation of wills really needed?
A discussion of the reasons for attestation is appropriate for properly dealing with the question. The principal reasons advanced in support of the requirement of attestation are, first, that, thereby forgery is made more difficult; secondly, that there can be no doubt as to the identity of the testator when there is attestation; and thirdly, that the likelihood of the will being signed under coercion is reduced. However, the validity of each of these reasons has been questioned. It is stated1 that if a person is determined to prove a forged will, he can also forge the signature of a bogus witness.
Even in the case of a genuine will, if the witnesses have disappeared, a will may still be proved otherwise, so that there may be little difference in practical effect between a will with two genuine witnesses who have disappeared and a will with signature of two invented witnesses who are totally fictitious.
In regard to the identity of the testator, it is stated2 that in a society where there is rigid documentation and recording, such a rule is NO longer required.
1. Mellows The Law of Succession, (1977), pp. 70-72.
2. Mellows The Law of Succession, (1977), pp. 70-72.
13.19. Safeguard against coercion.-
Then, as regards the possibility of coercion, it is stated that if a will is made under coercion, there is nothing to prevent that testator from revoking it as soon as the coercion ceases, unless he had died in the meantime. While, in certain circumstances, the formal requirements may be useful to prevent coercion, it is hardly a sound reason by itself to justify the retention of these formalities.
13.20. Attestation to be retained.-
There is, no doubt, some force in the arguments against attestation as summarised above1. Nevertheless, we think that on a balancing of considerations, a change dispensing with the attestation of wills might prove to be unwise in the long run. Attestation at least has the merit of ensuring that the document was signed after some reflection. In addition, it may often be useful as securing witnesses to the execution of the will. These advantages could well outweigh the other arguments.
1. Para. 1'3.19, supra.
13.21. Attestation in presence of testator-physical and mental presence.-
The requirement of attestation need not, therefore, be done away with. Certain matters of detail concerning attestation may now be considered. Under section 63, clause (c), attestation .must be in the 'presence' of the testator. One of the questions to which the English case of Chalcraft1 gave rise was whether the document had to be duly attested in the 'presence' of the deceased. Willmer, J., recalled that he had been referred to cases which established the proposition that a testamentary document must be attested not only in the physical, but also in the mental, presence of the deceased.
The testatrix wrote "E. Chal" and could not go further, apparently because of the influence of a drug which had been prescribed. Willmer, J., observed that once the court had been satisfied that the document was intended to be a testamentary document and had been properly signed, the court would allow a certain latitude in construing the word "presence".
The operation of the drug would be inconsistent with the sudden departure of mental faculties, and the proper inference to draw was that, since the document was attested immediately after the deceased wrote what she did write, she was still mentally 'present' in sufficient degree to comply with the requirements of the Wills Act, 1837. The court accordingly pronounced in favour of the codicil.
1. Chalcraft (in re:), (1948) 1 All ER 700.
13.22. Simultaneous presence not necessary.-
While attestation must comply with the detailed provisions in clause (c), simultaneous presence of both the witnesses is not necessary in India, whether the attestation is direct (by actually witnessing the signature) or indirect (by acknowledgment of signature by the testator). Section 63(c) is specific on the point. On the other hand, the English law is different1-2 in-as-much as both the witnesses must be present when receiving the acknowledgment.
A recent English case illustrates the difficulty caused by the stringent provisions of the law. It was held in that case3. that the testator should sign the will or acknowledge his signature in the presence of both the witnesses before either of them has attested and subscribed the document. Thus, the requirement of oral evidence becomes embedded in the section, causing injustice4.
As stated above, the Indian section is more specific on the point.
1. See Wills Act, 1837, section 9 (Para. 13.11, supra).
2. Coiling (in re:), (1972) 1 WLR 1440.
3. Coiling (in re:), (1972) 1 WLR 1440.
4. See comment in (1975) New LJ 115.
13.23. Recommendation to amend section 63(c).-
There is, however, need for clarification on one point concerning section 63 (c). The requirement that the attesting witness must see "some other person" sign would require amplification, having regard to our comments on clause (a) of the section.
In our discussion of clause1 (a), we have recommended that it should be made clear that the "other person" signing under clause (a) is competent to attest the will under clause (c). This clarification, to be made under clause (a), should naturally be made to govern clause (c) also, in so far as it requires that the attesting witness must see "some other person" sign. Accordingly, we recommend that below clause (c) of section 63 an Explanation should be inserted as follows:
"Explanation.-The provisions of clause (c) are subject to those of clause (a) and the Explanation thereto".
1. Para. 13.9, supra.