by Abhijeet Srivastava, B.B.A. LL.B. (H.), Specialization in Corporate Law, 4th Year, School of Law, UPES (Dehradun).
Will is a legal document made by the testator where he expresses his intention concerning his property which he desires to carry on after his death. It is pertinent to note that according to Section 63 of the Indian Succession Act, 1925 it is compulsory for the testator to provide an attestation of at least two witnesses while making a will. However, the issue becomes interesting when a person at the time of committing suicide, express his intention concerning his property in his suicide note. Can we consider this as a Will, even if it does not satisfy the essentials required under section 63 of the Act? The present article attempts to answer this question.
- Mental State of a Person while committing suicide:
Recently, on 7th November 2019, a similar issue was raised before the revenue court of Haryana, where financial commission Ashok Khemka, held that- “If suicide note is scribed by the deceased it will be a valid Will even when it is without the signature of the testator or attestation by the two witnesses”. According to the court, suicide is an act in desperation and during the period immediately before committing suicide, the situation is extremely emergent, where the testator thinks and believes his death to be imminent. He does not have inclination or time to think or act in leisure. He is a man seized, who wishes to make a last and final declaration of his intention with respect to his property, which he desires to be carried into effect after his imminent death. Therefore, in such a situation, it is not prudent for any person to fulfill the above requirement of attesting two witnesses as enumerated underSection 63 of the Act.
- Lex non cogit ad impossibilia:
This famous doctrine means that law does not compel anyone to does impossible things. Mostly, this doctrine is used as a defense in legal proceedings. Moreover, Hon’bleSupreme Court in the case of Excise Commissioner &Ors v.Ajith Kumar &Anr (2008) 5 SCC 495, said that nobody can be asked to do which is not possible to perform. Therefore, if this doctrine is applied in the instant situation, it is not reasonable for the person who is committing suicide to call two witnesses for attestation as required by the law.
- Foreign Jurisprudence:
To find out the answer we can also take reference from the Australian Law. Section 7 of the Wills Act 1997, deals with the validity of a will. It says:
“How should a will be executed? (1) A will is not valid unless— (a) it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and (b) the signature is made with the testator’s intention of executing a will, whether or not the signature appears at the foot of the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other. (2) A statement in a will that the will has been executed in accordance with this section is not necessary for the will to be valid.”
On careful analysis, it is crystal clear that section 63 of the Indian Succession Act, 1925 is identical to section 7 of the Wills Act, 1997 of Australia. Alike the former, the latter provision also requires providing an attestation of two or more witnesses by testator while making a will. However, in cases of suicide notes, Australian courts have also relaxed this requirement of attestation of two or more witnesses. In the case Costa v. Public Trustee  NSWSC 1271, initially at the trial stage, court did not consider suicide note as a will because it does not satisfy the requirement for attestation of witnesses. However, when the matter went for an appeal, the decision of the trial court was overruled by the higher court, where it said the trial court did not give sufficient weight to the situation like suicide which is unique and held that suicide note can be considered as a will. Moreover, in the case of Estate of Yu  QSC 322, where the testator committed suicide in Queensland and had left a message that all his property will go to his brother and also provided all his bank details, PIN, credentials, etc. Supreme Court of Queensland held that this will be considered as a valid will. Similarly, the court in the case of Estate of Irvine  NSWSC 432, also said that mere creation of a will like a document has itself considered an assent given by the testator.
Therefore, this article aims to urge policymakers to craft a narrow exception to the attestation condition mentioned under Section 63 of the Indian Succession Act. This is because mere technical considerations cannot nullify the substance of the will, especially where it is virtually impossible to seek compliance with the rigors of the law.