• Witness to a will

A will with 2 attesting witness was kept in sealed custody of Registrar. Later after the death of executor and after many years when it was opened, the 02 witness were called but they did not turn up so it was registered with 2 different witness. If at the time of execution of will/probate, the 2 attesting witnesses could not be found so can the concerned court use the evidence of the witnesses who were present at the time of registration. Plz cite case laws.
Asked 4 years ago in Property Law
Religion: Hindu

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12 Answers

You have to prove the will by evidence of attesting  witness who were present at time of execution of will 

 

 

 

2) 

Section 71 of the Indian Evidence Act is to meet the situation, where it is not possible to prove the execution of a Will by calling the attesting witness, though alive, or when the attesting witnesses have been called, they deny or fail to recollect the execution of the document. In that way, Section 71 of the Indian Evidence Act is incorporated to safeguard the mandatory provisions of Section 68 of the Indian Evidence Act. Section 71 of the Indian Evidence Act is only to give assistance and come to rescue of a party who has taken steps to get attesting witness to give evidence, but he failed to such witness denied or failed to recollect the execution of the Will. This is only with a view to prove the due execution by "other evidence"...."

4)AIR 2008 SC 2485 (Babu Singh and others V. Ram Sahai @ Ramsingh) wherein the Supreme Court has held as follows:

"14.It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e.,by examining witnesses who were able to prove the handwriting of the testator or executant. 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

1. No case laws has any blanket applicability and it applies to the peculiar facts situation of each case.

2. If attesting witnesses are dead then anyone who are aware of their handwriting or signatures can prove their attestation.

3. This is well settled law which does not require support of citation.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

If witnesses to will is not traceable, court may require further evidence of due execution of the will and issue citations  calling upon all persons claiming to have any interest in estate of the deceased to come and see the proceedings before the grant of probate or letters of administration. 

The citation shall be fixed up in some conspicuous part of the court house and in collector office and otherwise published in such manners as the court may deem proper. 

Verification by the wittness to the will who saw the testator affix his signature thereto,  is considered by court. 

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

5.0 on 5.0

Yes it has to be proved through witness from registrar office and the witness who saw the attesting witness signing the same

Prashant Nayak
Advocate, Mumbai
31807 Answers
175 Consultations

4.1 on 5.0

See firstly the will is registered and secondly the witnesses to registration of will can be used to support the validity of will.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

A will need not be registered to be effective. If the witnesses who were present at the time of making and signing of the will cannot be found, still the will can be enforced. Now another set of witnesses cannot be used when the person making the will has died.

Regards 

Rahul Mishra
Advocate, Lucknow
14081 Answers
65 Consultations

5.0 on 5.0

To prove will either witness have to appear and if they fail to record their testimony, court is not dependent on them only, presumption of valid execution if WILL is registered.

Law is clear on this point. Will cannot be discard merely because witness not appeared.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

Firstly, was the will executed and registered when it was kept in sealed custody in the Registrar's office? Or was it subsequently registered ?

Secondly in the State of Uttar Pradesh probate of will is not a mandatory requiremnt, only when the will is questioned in a court's proceeding then in pursuance of Section 68 of the Indian Evidence act, it is required to be proved.

Moreover a Will doesn't necessarily requires registration.

All the best.

Nirmit Srivastav
Advocate, Lucknow
60 Answers

5.0 on 5.0

  1. 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.
  2. It is possible to obtain probate of a Will even if the attesting witnesses are dead, it may be a slightly more cumbersome procedure and a longer process.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

If the witnesses cannot be found, it might be tougher to challenge. If the Will is contested, you will need to retain an advocate to assist you in defending it

 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

For a registered Will, there is no necessity to produce the attesting witnesses if they are not alive or not willing to come before court.

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.

Thus, while it is possible to obtain probate of a Will even if the attesting witnesses are dead, it may be a slightly more cumbersome procedure and a longer process.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Yes the witness at time of registration have more evidentary value then witness who signed unregistered will. 

Court will summon the witness who signed the will at time of registration of will 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

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