You can probate your will without witness also. There are many wills in which witnesses are dead or not traceable still court grant probate on merits. In the event that no such attesting witness is alive or can be found, then as per section 69 of the Indian Evidence Act, 1872, the Will has to be proved by proving the signature of the testator as well as that of at least one attesting witnesses. It's slightly Cumbersome but not impossible
Witness of registered will passes away then how to take probate
My mother has made a will for her flat so that I can get it after her death. I’m the only child. We have registered the will with the sub-registrar office. My question is if after my mother’s death, the witnesses are not reachable or also dead, then how can I get probate ?
Asked 6 years ago in Property Law
Religion: Hindu
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section 68 of evidence act provides that you have to examine atleast one attesting witness to prove the will .
2) if both the attesting witnesses are dead you can prove the will by other evidence . you can examine a witness who can identify the testator signature on the will .
3) you also have to produce death certificate of AW as evidence that both witnesses are dead .
We have registered the will. That should be proof of authenticity of the will right ? I see no reason to require a witness when the will is registered as the registrar’s office has the authentic will.
Asked 6 years ago
When you apply for probate of will you need to prove the will by affidavit of one of the attesting witness
2) probate is not mandatory
3) however if any of the legal heirs object to mutation of property you will have to prove the will
4) the registration will dispel the doubt as the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value.
See since will is registered with subregistrar even if the witnesses are not present or reachable the court based on registration can probate the will.
Yes registration of will be the proof that will was made by and signed by mother only and it will considered credible.
1) If you are single child than no need to make WILL just get nomination done on property card.
2) If you have any fear in your mind than you can register this WILL with registrar and get probate from court later on.
3) You have to get probation done from court and court issues order.
Hello Sir,
Please be advised as follows:
-
Under section 63 of the Indian Succession Act, 1925, a Will is required to be attested by two or more witnesses in the presence of the testator, each of whom have seen the testator sign or affix his mark to the Will or have received personal acknowledgement from the testator that he himself has signed the Will. - Subsequently, at the time of obtaining probate, the attesting witnesses, or one of them is required to depose to this fact. This is because as per Section 68 of the Indian Evidence Act, 1872, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
- Therefore because of a Conjoint Reading of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act at least one of the attesting witnesses will need to depose for the purpose of proving due execution of a Will.
- In the event that no such attesting witness is alive or can be found, then as per section 69 of the Indian Evidence Act, 1872, the Will has to be proved by proving the signature of the testator as well as that of at least one attesting witnesses.
- Therefore Although you have a registered WILL but at the time of obtaining its probate you will have to prove the signature of the testator (your mother) and signature (of any one witness).Please revert in case of any query.Thank you for your time and Consideration.
You'll get a probate, even if both the witnesses are dead and no person objects to it.
Having 2 witnesses is a statutory requirement and cannot be bypassed. Without 2 witnesses, it would be void.
1. There is no necessity for any Witness, for probate proceedings.
2. Just produce the Original registered will alongwith your affidavit and follow due procedure of law, to obtain probate of will, within approx. six months (if in mumbai).
1. if the witnesses are dead or not traceable, then other evidence can be produced to show that the Will was duly attested by the witnesses
2. registration of a Will lends no extra credence to it. Under law a Will is not even required to be registered
3.so just because the Will is registered, does not mean that the proof of the genuineness of the Will and that it was executed and attested as per law, is dispensed with
4. even if there are not witnesses, you can still apply for probate. The death certificates of the witnesses can be submitted
5. also the evidence of any other person, apart from the witnesses, who had seen the testator execute the Will, can be given in lieu of the evidence of the demised witnesses
What is the need of probate, Registered WILL - presumption of duly executed.
1. If the witnesses are untraceable or dead then also the Will can be probated and their signature can be formally proved by those who are well known about their identity and signature.
2. SO you can take help of close friend or relatives of the witnesses who can testify in court in support the attestation of Will by recognising their signature and get th Will Probated.
- Under section 63 of the Indian Succession Act, 1925, a Will is required to be attested by two or more witnesses in the presence of the testator, each of whom have seen the testator sign or affix his mark to the Will or have received personal acknowledgement from the testator that he himself has signed the Will.
- Hence, at the time of obtaining probate, the attesting witnesses, or one of them is required to depose to this fact.
- When , no such attesting witness is alive or can be found, then as per section 69 of the Indian Evidence Act, the WILL has to be proved by proving the signature of the testator as well as that of at least one attesting witnesses.
- Therefore, even if the attesting witnessess or testator of the WILL died, it is possible to obtain Probate.
- A registered WILL is not enough for Probate process.
- In the event of death or not found the witnessess , even you can get the probate the said WILL from the Court , after producing some witnesses , who can testify the signature of the testator/witnesses.
- Finally, you will have to proof the signature of the testator/witnessess of the WILL .
Even after registration of will. During probate if any objection is raised you will require to prove the will
1. You are the only child of your late mother.
2. If your father is not alive or if there is no other legal heir of your late mother, then you shall inherit her properties even without any will as per Succession Act.
3. If your father is alive, then file the probate application sending him the copy for his either contesting it or giving consent for it.
4. If there is no legal heir of your mother alive, obtain a legal heir certificate from the councillor of your local municipal Corporation and apply for mutation of the said property in your favour.
as per section 69 of the Indian Evidence Act, 1872, the Will has to be proved by proving the signature of the testator as well as that of at least one attesting witnesses.
1. For properties opf certain places like Delhi, grant of p[robate is not required.
2. It is required for places like Kolkata.
3. In your case, no will be required if you have no other legal heir of your lkate mother's property.
4. In case of granting probate for a will which is contested, the Court asks the witnesses to depose if it is alleged by the contestant that the said will has been executed/registered by deception/coercion etc.
Dear client
As you are the only child of your mother you don't even need to get the will executed as the property will automatically get transfered to your name after following some procedure for transfer.
First you have to apply for legal heir certificate in your tehsil along with list of all legal heir in your case you are the only one. Then after inquiry tehsildar will issue the certificate to you. After getting the certificate you have to go for mutation of property in concerned department along with death certificate of your mother, legal heir certificate and original deed of your property after that you can get the property transfered to your name.
If your mother is living then you mkay ask her to change the |Will or cancel the previous one and prepare a new one with the witnesses comparatively at a lesser age, so that this problem would not arrive.
If she is not living and the witnesses are not living or not traceable, you may bring in the registrar as witness since this is a registered Will, this will solve the problem.
Whether the Will is registered or not, the production of witness before court for deposing the evidence about the signature of the testator who signed before them is pertinent and essential, the registration would be a secondary evidence in case if no witnesses are forthcoming or not living.