‘Self Proving Affidavit’ and its Advantages
We have a Will and the testator is no more. After his death, can ‘Self Proving Affidavit’ or ‘Affidavit From Witnesses To Will’ or ‘Proof Of Execution Of Will’ from the subscribing witnesses to the Will, be taken from the witnesses since the will is unregistered and it has no Attestation Clause and for the reasons like if the witnesses may die, or become insane or settle out of country or unavailable due to any other reasons. Is there a provision for this in Indian legal system? This provision exists in countries like US and western countries.
Can this affidavit be taken as precautionary measure before the will is challenged? What are the advantages? Please reply.
- Bangalore, Karnataka, India
Asked 2 years ago in Property Law from Bangalore, Karnataka
you do not require registration of will
Advocate, New Delhi
you can make application for registration of will after death of testator to sub Registrar . the affidavit of attesting witness can be taken . they will depose that will is made of free will of testator , that he was of sound mind and in perfect health . that testator has signed will in their presence ,
Apply to the local sub-registrar for registering the will after the death of testator. Indian law also provides for registration of a will post death of testator. The attesting witnesses shall file an affidavit to vouch for their signatures on will and that the testator was in sound health at the time of making the will. Thereafter, sub-registrar will allow registration.
However, no benefit can be derived from this affidavit in the event that will is challenged in a court of law.
We have a holograph unregistered WILL with two attesting witnesses. Suppose we go for Probate OR the will is challenged in the court, if both the attesting witnesses cannot come to court for giving testimony due to any reason, what will court do and how judgment is given?
Is testimony by one witness sufficient?
Asked 2 years ago
you dont need to examine both attesting witness . affidavit of one attesting witness is sufficient under Evidence Act
One witness alone will suffice.