Report No. 110
Chapter 15
Attestation, Revocation (Including Effects of Subsequent Events), Alteration and Revival of Wills (Sections 67-73)
I. Attestation
15.1. Scope.-
The attestation, revocation (including effects of subsequent events), alteration and revival of wills are matters dealt with in sections 67 to 73.
The rules comprised in sections 67 to 73 could be broadly classified as follows:-
(a) effect of a benefit given by the will to an attesting witness on its validity (section 67) or on competence to prove (section 68);
(b) effect of marriage (section 69);
(c) revocation of unprivileged wills (sections 70-71) and their revival (sections 73);
(d) revocation of privileged wills (section 72).
15.2. Section 67-Request to attesting witness.-
Section 67 deals with the effect of a gift given by a will to an attesting witness or to his spouse. The rule enacted is that the mere fact that the beneficiary is a person attesting the will (for a spouse of the attesting witness) does not affect the validity of the attestation, but the bequest in favour of the person attesting (or his or her spouse) is void. The same rule applies to a power of appointment conferred by the will.
15.3. English rule.-
This provision broadly corresponds to section 15 of the English Wills Act, 18371-a provision itself derived from an earlier English statute.2
Section 15 of the Wills Act, 1837 reads:-
"If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift or appointment shall so far only as concerns such persons attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will."
1. Section 15, Wills Act, 1837 (English).
2. Wills Act, 1751 (English).
15.4. Exceptions carved out in English law by judicial decisions.-
It should, however, be noted that in England, to this general rule, certain exceptions have been carved out by case law, and (on one particular point) by statute.1
1. Section 1, Wills Act, 1968; see para. 15.9, infra.
15.5. Position of spouse in England.-
As regards section 15 of the Wills Act of 1837 (which provides that a beneficial gift to the wife or husband of an attesting witness shall also be void), the English courts have sought to construe it as narrowly as possible. For example, in one of the English cases1 the testator had left property to a woman beneficiary. She married one of the attesting witnesses after the execution of the will, but before the testator's death. It was held that the gift to her remained effective and was not avoided by section 15, since the policy of the section required a consideration only of the position at the time of execution.
1. Thorpoe v. Bestwick, (1881) 6 QBD 311; See Tiley Attesting Witness: Some remaining problem, (1968) 112 Sol Jour 994.
15.6. Exception-English law.-
The position in England in this respect as regards exceptions carved ant judicially1 has been stated2:-
"1314. Exceptions to general rule:-
Where by means of a parol trust a beneficial interest is conferred upon an attesting witness who is, at the time of attestation, unaware of the secret trust in his favour, the gift is valid. The marriage of a donee to an attesting witness after attestation does not affect the validity of the gift. A beneficiary's interest is not rendered void if it could not be predicted that he was a donee at the time when the will was attested (or possibly at the time of the testator's death)."
1. See also section 1, Wills Act, 1968.
2. Halsbunis Laws of England, 3rd Edn., Vol. 39, p. 870, para. 1317.
15.7. Secret trusts in England.-
As to the position where one of the witnesses to the will is to take a benefit under a secret trust, the English cases are not consistent. In an early1 English case of 1880 it was held that the beneficiary under the secret trust could not take a gift under the will, but this was not followed in a comparatively more recent case.2 The later decision is more in keeping with the generally liberal approach adopted in modern times. A beneficiary under a secret trust does not fake "under the will", and is not therefore, affected by section 15, Wills Act, 1837.
1. Fleetwood, Sidgreaves v. Brewer, (1880) 15 Ch D 594.
2. Young (in re:), Young v. Young, (1951) Ch 344: 1950 All ER 1245 (1250, 1251).
15.8. Origin of the general rule.-
The origin of the general rule is of interest. At common law, the general rule of evidence was that persons "interested" in the outcome of litigation were incompetent to testify, and the courts took the view that persons taking any benefit under a will were not, therefore, credible witnesses as required by the Statute of Frauds. The effect was to render the whole will invalid if at least one of the witnesses received a benefit under the will.
The Wills Act, 1752 qualified the harshness of this view by providing that such person should be credible witnesses, but that the gifts to such person were void1. Any creditor of the deceased whose debt is charged by the will on any real or personal property of the deceased is not prejudiced by attesting the will (section 16) and (section 17) makes it permissible for an executor to be an attesting wit ness, since an interested person is competent to testify, the original reason is gone.
1. Miller Machinery of Succession, (1977), p. 145, f.n. 5.
15.9. Wills Act, 1968.-
By the Wills Act, 19681 a further exception is provided for the purposes of section 15 of the Wills Act, 1837.
Section, 1 Wills Act, 1968 provides as follows:-
"1. (1) For the purpose of section 15 of the Wills Act, 1837 (avoidance of gifts to attesting witnesses and their spouses) the attestation of a will by a person to whom or to whose spouse there is given or made any such disposition as is described in that section shall be disregarded if the will is duly executed without his attestation and without that of any other such person.
(2) This section applies to the will of any person dying after the passing of this Act, whether executed before or after the passing of this Act."
1. Section 1, Wills Act, 1968.
15.10. Provision in Uniform Probate Code.-
It may be noted that USA section 2-505 of the Uniform Probate Code eliminates the presence and in competency requirements. It provides as under:
"Section 2-505. (who may witness):
(a) Any person generally competent to be a witness may act as a witness to a will.
(b) No will or any provision thereof is invalid because the will is signed by an interested witness."1
1. Section 2-505, Uniform Probate Code; Miller Machinery of Succession, (1977), p. 146.
15.11. Reason of the Prohibition.-
This naturally raises the question-why is section 67 needed at all? The original reason of the prohibition in section 67 is incompetence to give evidence on the ground of interest. Interest as such, has, however, long since ceased to be a disqualification in regard to giving evidence, but the "suspicion or rather the charge of possible collusion with benefit,"1 still survives.
1. Administrator-General v. Lazar Stenben, 1882 ILR 4 Mad 244 (246).
15.12. Unity of interests.-
The extension of the above prohibition to the wife seems to be based on the assumed unity of interest between husband and wife.1
1. Administrator-General v. Lazer Stenhcn, 1882 ILR 4 Mad 244 (246).
15.13. Criticism of present provision in India.-
It remains now to consider the propriety of the present provision. While one may agree that the fact that a person may derive some benefit under a will is a ground for scrutinising the validity of the will with more than ordinary care, a rigid rule virtually prohibiting the attesting witnesses from taking under the will seems to be rather harsh. The hardship would be more pronounced in cases where all the attesting witnesses available with reasonable effort are beneficiaries under the will.
15.14. Judicial decisions.-
Realising the harshness of this provision and of the corresponding provision in section 19 of the Oudh Talukdars Act, 1869, courts1 in India have been astute to construe the signature of the beneficiary as a signature made not in the capacity of an attesting witness, but in some other capacity. That the statutory rule of law may be a source of hardship in a particular case2 has not gone unnoticed judicially.
1. Shiam Sunder v. Jagan Nath, AIR 1926 Oudh 465 (467), confirmed by the Privy Council in 32 CWN 305.
2. Administrator-General v. Latzer, 1882 ILR 4 Mad 244 (246).
15.15. Present provision wrong in principle.-
The present provision in India is thus harsh and is wrong in principle. The position, therefore, seems to be in need of reform. We have already referred to the reform effected on the subject in England.1 To improve upon the present law in India we have the following alternatives before us:-
(a) (i) It can be provided that a witness to a will may still inherit under the will, if the will has also been witnessed by at least two other disinterested witnesses.
(ii) Alongwith the above amendment, it should be provided that the section does not apply in certain exceptional cases. We have in mind those special cases for which English law makes an exception.2
(b) In the alternative, the section could be modified by reversing that part thereof which invalidates the bequest.
Perhaps, alternative (b) may appear to be too drastic. But alternative (a) would certainly be fair and unobjectionable.
On a careful consideration, we favour the adoption of alternative (a) mentioned above.
1. Paras. 15.4 to 15.8, supra.
2. Para. 15.6, supra.
15.16. Amendment of section 67 recommended.-
Accordingly, we recommend that section 67 should be amended by inserting the following exception in the section before the Explanation:-
"Exception.
For the purposes of this section, the attestation of a will by a person to whom or to whose spouse there is given any such benefit as is described in this section shall be disregarded-
(a) where the means of an oral trust, a beneficial interest is conferred upon an attesting witness who at the time of attestation is unaware of the secret trust in his favour; or
(b) where the marriage to an attesting witness of a person taking a beneficial interest under the will takes place after the attestation; or
(c) where at the time of the attestation it could not be predicted that the attesting witness was a person taking a beneficial interest under the will; or
(d) where the will has been witnessed by not less than two other witnesses, to whom no such benefit as is described in this section is given by the will."
