Will: Conditions for proper and legal attestation.
Should the two attesting witnesses be present at the same time when the will is executed?
Evidence Act, 1872; Section 68.
View of Kerala High Court:
For valid attestation unlike the English Law, as it stood before the amendment of English Wills Act, 1837 Indian Law does not insist that the two attesting witnesses also should be present at the same time when the will is executed. It is possible for executing a will with proper attestation by the attesting witnesses signing at different times and without knowing each other. Since the requirement of Section 63 Succession Act is only that there should be two attesting witnesses in the will and that there is no insistence that the attesting witnesses also should be present at the same time, we find it difficult to extend the provision of Section 68 of the Evidence Act so as to make it obligatory even when only one attesting witness is called and the propounder is not in a position to call the other witness, to elicit a fact which the attesting witness called may not be in a position to speak honestly before the court. We feel that such an insistence would only be an addition of an unnecessary technicality and that it may lead to witness called for proving, execution and attestation of wills deposing falsehood before the court. In this view, we find it difficult to follow the decisions reported in AIR 1946 Bom 12; AIR 1949 Bom 266, AIR 1974 AP 13; AIR 1981 Mad 252.