Your Will Needs Two Witnesses, But Not in the Same Room

A cousin looks at the signed will, notices that one witness dated it on a Tuesday and the other on a Friday, and announces that the whole document is worthless because the two of them were never in the room together. The family tears it up and starts again, or gives up and leaves nothing behind at all.

That advice gets the statute backwards. Section 63 of the Indian Succession Act 1925 does not ask the two witnesses to be present together, and it says so in words that leave no room for argument. What the same clause does insist on is something families are far more casual about, and that is the requirement which actually sinks wills.

The scene above is an illustration and not a reported case.

Section 63 is headed “Execution of unprivileged wills”. It opens by naming the people it does not cover: “Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules”. Soldiers on active service, airmen so employed and mariners at sea can make privileged wills under separate provisions. Every other will is an unprivileged will, which means almost every will you will ever handle, and these three rules govern it.

• Clause (a). “The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.”
• Clause (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.”
• Clause ©. “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 acknowledgement of his signature or mark, or 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.”

Clause (a) allows a mark instead of a signature, and allows somebody else to sign for the testator, but only “in his presence and by his direction”. Clause (b) is about placement: the signature has to sit where it shows the writing was meant to take effect as a will, which is why a signature stranded on a covering note causes trouble. Clause © carries the entire attestation rule, and it is worth reading twice, because it gives with one hand and takes with the other.

Part VI of the Act, which contains Section 63, does not apply to every will in India in the same way, so it is worth knowing why it applies to yours.

• Section 58 sub-section 1 says the provisions of that Part “shall not apply to testamentary succession to the property of any Muhammadan nor, save as provided by section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jaina”.
• Section 57 then applies the provisions “which are set out in Schedule III” to wills and codicils made by a Hindu, Buddhist, Sikh or Jaina, including, under its clause ©, all such wills made “on or after the first day of January, 1927”.
• Schedule III carries the note “See section 57” and lists which sections travel across. That list opens “Sections 59, 61, 62, 63, 64, 68, 70, 71, 73, 74, 75” and runs on from there. Section 63 is on it.

So the two-witness rule does govern an ordinary will made today by a Hindu, Buddhist, Sikh or Jain. Which other sections of Part VI govern it is a separate question with a different answer. Where the property in question is that of a Muhammadan, Section 58 keeps Part VI out of the picture altogether. Personal law decides which rulebook you are working from, so settle that question first rather than assume a single set of rules covers everybody.

This is the half of clause © that is never relaxed, and it is where the article earns its keep. Strip the clause down and it asks two quite different things of each witness.

The first is about what the witness knows, and here the clause offers a choice of three routes. A witness qualifies if he “has seen the testator sign or affix his mark to the Will”, or has seen some other person sign it “in the presence and by the direction of the testator”, or “has received from the testator a personal acknowledgement of his signature or mark”. That third route is the reason the testator never has to sign the same will twice or perform in front of an audience. He can sign quietly, then show the signature to a witness later and acknowledge it as his own.

The second thing is about the witness's own signature, and here the clause offers no choice at all. “Each of the witnesses shall sign the Will in the presence of the testator.” Read the clause again and you will find no alternative route attached to those words. There is no acknowledgement by telephone, no signing back at the witness's office, no returning the papers next week.

Put the two halves together and the real rule appears. Each witness may attest on his own separate occasion, and the testator's signature may already be sitting on the page when he does it, but the testator has to be present on each of those occasions. The relaxation runs one way only. Timing is loosened. Presence is not.

1. Have the will completely written out and read it through yourself before anybody signs anything. Corrections added afterwards are a separate problem you do not want to create.
2. Sign it, or affix your mark, at the end of the document, placed so that it plainly shows the writing is meant to take effect as your will. That is what clause (b) is asking for.
3. If you cannot sign, have another person sign for you, in your presence and by your direction, exactly as clause (a) permits. State that you are directing it, out loud, while the witnesses can hear.
4. Bring in the first witness. Either let him watch you sign, or show him the signature and tell him in terms that it is yours. Then have him sign the will while you are there and watching.
5. Bring in the second witness, the same day or a different day. Repeat the same two steps with him. He does not need to have met the first witness or seen his signature.
6. Ask each witness to add his full name and address in clear block letters under his signature. Nothing in Section 63 demands this, since no particular form of attestation is necessary, but it is what lets somebody trace that witness years later.
7. Note down the date and the place at which each witness signed. The clause turns on where the testator was at that moment, so a record of it is worth keeping with the will.

Yes. Clause © states that “it shall not be necessary that more than one witness be present at the same time”. The two of them do not have to meet each other, and the section fixes no gap or sequence between the two attestations. The condition that travels with every signature is the other half of the clause, which is that the testator has to be present when each witness signs.

Section 63 does not ask them to. What clause © asks of a witness is that he saw the testator sign, or saw somebody sign by the testator's direction, or received a personal acknowledgement of the signature, and that he then signed the will in the testator's presence. Reading the contents appears nowhere in that list. A witness is attesting a signature, not approving the bequests, so a testator who wants to keep the contents private can do so.

It is the most serious problem on this page. Clause © requires that “each of the witnesses shall sign the Will in the presence of the testator”, and the section offers no substitute for that. A signature made in the testator's absence has not met what the clause asks. While the testator is alive the safe course is to execute a fresh will, properly, with two witnesses who each sign while the testator is present. Take advice on the specific document rather than leave the defect sitting there in the hope that nobody notices it.

Section 63 sets no bar on who may witness and does not disqualify a beneficiary. What happens to the gift is dealt with elsewhere. Section 67 of the same Act says a “Will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting, or the wife or husband of such person, or any person claiming under either of them”. Note the two halves: the attestation stands, the gift to that witness does not. Note also that Section 67 does not appear in the list of sections in Schedule III, the way Section 63 does, so it does not reach a will covered by Section 57 in the same manner. Because the answer differs with the kind of will you are making, this is a point to take advice on rather than guess at. The safe course is identical either way, which is to choose two witnesses who take nothing under the will.

Section 63 says nothing about either. Its three requirements are the testator's signature or mark, the placement of that signature, and attestation by two or more witnesses. Stamp duty and registration sit in separate laws with their own state by state variations, so ask about them as separate questions. What you should not do is assume that a will on plain paper, or an unregistered will, has failed Section 63. On the wording of the section, it has not.

1. Two witnesses at the minimum. The clause says “two or more witnesses”.
2. Neither witness needs to be present while the other one signs.
3. Every witness must sign while the testator is present. The clause allows no way around this.
4. Either let each witness watch the signing, or show him the signature and acknowledge it as yours.
5. Pick witnesses who take nothing under the will, and who are likely to outlive the testator.
6. Do not hunt for a magic form of words. The clause says no particular form of attestation is necessary.
7. Record the date and place of each attestation, and store the will where the executor can actually find it.

Wills often turn on a document that a government office is sitting on, a registered deed at the sub-registrar, a mutation entry at the tehsil, or a record of death. When the office will not hand over a copy, a written application under the Right to Information Act is the cheapest way to ask for it. Our RTI drafting tool will frame the request for you, The RTI Playbook takes you through the whole process from application to first appeal, and more step by step material sits in our practical guides.

• Indian Succession Act 1925, Section 63, headed Execution of unprivileged wills, and its opening words excepting a soldier employed in an expedition or engaged in actual warfare, an airman so employed or engaged, and a mariner at sea.
• Indian Succession Act 1925, Section 63 clause (a), on the testator signing or affixing his mark, or another person signing in his presence and by his direction.
• Indian Succession Act 1925, Section 63 clause (b), on the signature being so placed that it shall appear it was intended to give effect to the writing as a Will.
• Indian Succession Act 1925, Section 63 clause ©, on attestation by two or more witnesses, each of whom signs the Will in the presence of the testator, with no need for more than one witness to be present at the same time and no particular form of attestation being necessary.
• Indian Succession Act 1925, Section 67, on the effect of a gift to an attesting witness.
• Indian Succession Act 1925, Sections 57 and 58 read with Schedule III, on which provisions of Part VI apply to which wills.