Whether attester of a will is entitled to receive benefits under that same will ?

 Legal Framework under the Indian Succession Act, 1925

The question of whether an attesting witness (attester) to a will can receive benefits under that same will is governed by Section 67 of the Indian Succession Act, 1925. The Act lays down specific rules on this issue, and the answer depends on both the religion of the testator and the role of the witness.

General Rule: Bequest to Attesting Witness Is Void

• Section 67 of the Indian Succession Act, 1925 states that if a person (or their spouse) who attests the execution of a will is also a beneficiary under that will, the bequest (i.e., the benefit or legacy) to that person or their spouse is void. However, the will itself remains valid and is not rendered invalid merely because of this.

• The rationale behind this rule is to prevent any suspicion of collusion or undue influence by the witness, who stands to benefit from the will.

Effect on Attestation and Will Validity

• The attestation by such a witness is still valid. The will is not invalidated simply because a beneficiary has attested it; only the bequest to that witness (or their spouse) is void.

• This rule also applies to any power of appointment conferred by the will on the attesting witness or their spouse.

Exception: Wills Made by Hindus, Buddhists, Sikhs, and Jains

• The restriction under Section 67 does not apply to wills made by Hindus, Buddhists, Sikhs, or Jains. For these communities, a beneficiary can be an attesting witness, and any bequest to such a witness or their spouse remains valid.

• This exception is based on the personal laws applicable to these religions, which do not impose the same restriction as the general rule under the Indian Succession Act.

Application to Other Religions

• For Christians, Parsis, and others not covered by the above exception, the rule in Section 67 applies strictly: any benefit to an attesting witness or their spouse is void, but the will remains valid.

Additional Points

• Executors as Witnesses: An executor (a person appointed to carry out the terms of the will) is not disqualified from being a witness. However, if the executor is also a beneficiary and has attested the will, the benefit to them is void.

• Number of Witnesses: A valid will requires at least two witnesses, but there is no restriction on their relationship to the testator except as per Section 67.

Summary Table: Attesting Witness and Benefit under Will

Testator's Religion	Can Attesting Witness Receive Benefit?	Is Will Valid if Attesting Witness is Beneficiary?
Hindu/Buddhist/Sikh/Jain	Yes	Yes
Christian/Parsi/Other (non-Muslim)	No (bequest is void)	Yes
Muslim	Not governed by these rules	Not applicable (no attestation required)

Conclusion

• An attesting witness to a will cannot receive benefits under the same will if the testator is a Christian, Parsi, or belongs to other religions governed by the Indian Succession Act, 1925 (except Hindus, Buddhists, Sikhs, or Jains); any bequest to such a witness or their spouse is void, but the will remains valid.

• For wills made by Hindus, Buddhists, Sikhs, or Jains, a beneficiary can be an attesting witness and still receive benefits under the will.

This distinction is crucial and must be carefully considered while drafting and executing wills in India.

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