If a Witness Retracts: The Legal Effect on a Testamentary Will in India

Shivendra Pratap Singh

Advocate

High Court Lucknow

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Drafting a will is a careful and meticulous process, given that it dictates the distribution of assets after one’s demise. In India, like many countries, witnesses play a crucial role in the validation of a testamentary will. But what happens if a witness retracts their statement?

Let’s delve deeper into the significance of a witness in the context of testamentary wills in India and the potential repercussions if a witness retracts their testimony.

Understanding the Role of Witnesses:

In India, the execution of a will is governed by the Indian Succession Act, 1925. As per Section 63 of the Act:

  1. A will must be signed by the testator (the person making the will).
  2. The signature should be made in the presence of two or more witnesses.
  3. These witnesses should attest (sign) the will in the presence of the testator.

Thus, the role of a witness is not only to confirm that the will was signed by the testator but also to verify its legitimacy and vouch for the testator’s sound state of mind.

What if a Witness Retracts?

  1. Not Automatic Invalidation: If a witness retracts their statement or claims they did not actually witness the testator sign the will, it does not automatically invalidate the will. The court will typically assess other available evidence to determine the authenticity of the will.
  2. Evidence Value Diminishes: While retraction does not nullify the will, the evidentiary value of that witness’s testimony is certainly reduced. In the absence of other strong supporting evidence, the will’s authenticity might be challenged.
  3. Replacement of Witnesses: If before the death of the testator a witness retracts or is proven unreliable, the testator can choose to re-execute the will with new witnesses to ensure its validity.
  4. No Beneficiary as Witness: It’s worth noting that if a person who is a beneficiary in the will also acts as a witness, the bequest (gift through the will) to that witness is void as per Section 67 of the Indian Succession Act. However, the rest of the will remains valid. If such a witness retracts, the scenario gets complicated, and legal advice is imperative.
  5. Witness’s Testimony in Court: If there’s a dispute regarding the will’s validity, and if a witness who had earlier attested the will retracts their statement during court proceedings, the court will have to weigh their testimony against other presented evidence. The court may also question the witness about their initial attestation and the reasons for their retraction.
  6. Potential for Perjury: If it’s found that a witness falsely testified in court (whether it’s the initial attestation or the retraction), they can be charged with perjury, a serious offence in India.

Given the complexities involved, it’s always recommended to consult with legal experts when drafting a will. They can guide you through the process, ensuring that every legal requirement is met, thereby minimizing the risk of potential disputes later on.

Conclusion:

Witnesses play a pivotal role in the validation of a testamentary will in India. A retraction by a witness does not automatically render the will invalid but can complicate matters and raise questions about the will’s authenticity. To avoid potential disputes, it’s advisable to work with legal professionals when creating a will and to choose witnesses who are trustworthy and reliable.