• Probate of will where witnesses cannot be traced

My brother executed a Will in Bengaluru, which is registered. The Will was executed in the presence of two witnesses who are now not traceable. The executor of the Will wants to petition for Probate. Is the presence of witnesses before the court mandatory for obtaining Probate?
Asked 2 years ago in Property Law
Religion: Hindu

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8 Answers

It is not necessary that witnesses should appear in Court, if they are not traceable any person who can identify their signature can depose in the Court.


A will has to be filed in district Court for transfer of property to persons named in the will. This process is called probating of the will. After filing of the will, the Court will issue notices to all the family members and hear objections if any they have against the will. After that appoint an executor of the Court for execution of will who will transfer and register the property mentioned in the will in favor of beneficiaries of the will. Unless will is probated it is of no use. You have to file the original will in the court and give the names and addresses of all the legal heirs and persons interested. There is fixed fee for probate proceeding which not very high. But you have to bear the expenses of lawyer which  vary from lawyer to lawyer. It will take 3 months for probating will.   

Ravi Shinde
Advocate, Hyderabad
4042 Answers
42 Consultations

5.0 on 5.0

You need to enclose affidavit of one of the attesting witnesses when you file application fir probate 

 

2) engage a detective agency to trace the attesting witnesses 

Ajay Sethi
Advocate, Mumbai
94731 Answers
7536 Consultations

5.0 on 5.0

Dear Client,

It is possible to obtain probate of a Will even if the attesting witnesses are dead or not to be found, it may be a slightly more cumbersome procedure and a longer process. However, it needs to be proven that the attestation of at least one attesting witness was in his/her handwriting.

Thank You.

Anik Miu
Advocate, Bangalore
8883 Answers
110 Consultations

4.7 on 5.0

1. it is not mandatory for both the witnesses to come to the Court

2. any one witness would do

3. and in case both the witnesses are not traceable, the executor can adduce other evidence to show that Will was executed as per law

4. the executor will very well be able to apply for probate to the Will. 

5. the absence of the attesting witnesses will not come in his way 


check if someone was present when the testator signed the Will and saw the testator signing the Will

that person can give his affidavit as a witness

Yusuf Rampurawala
Advocate, Mumbai
7514 Answers
79 Consultations

5.0 on 5.0

Yes if Witnesses are alive and will is challenged as testamentary suit then you may require otherwise not

Prashant Nayak
Advocate, Mumbai
31951 Answers
179 Consultations

4.1 on 5.0

The petition filed before court seeking probate of Will  shall be considered by court only after the Will is proved by attesting witnesses or by any other mode permissible in law.

Since it is a registered Will, the petitioner can file a petition to summon the registrar to adduce evidence  which would enable the court to dispense wit the evidence of the attesting witnesses. 

T Kalaiselvan
Advocate, Vellore
84932 Answers
2197 Consultations

5.0 on 5.0

Presence of witnesses is not mandatory before the probate court but it always supports your case better.

 

Siddharth Jain
Advocate, New Delhi
6303 Answers
102 Consultations

5.0 on 5.0

- As per law , the Registration of a WILL is not compulsory , and after the death of the testator, an executor of the Will or a heir of the deceased testator can apply for probate.

-  Further , A probate is a legal recognition given to a Will regarding its genuineness and legality, declared by a competent court.

- If, no 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 or the proof of the witnesses' deaths.

- Since, the witnesses are traceless then the WILL can be proved after producing other supporting witnesses who knows about the WILL and its execution. 

- Further, as the said WILL is registered from the office of the registrar , then the court may summon the registrar for proving the same. 

Mohammed Shahzad
Advocate, Delhi
13230 Answers
198 Consultations

5.0 on 5.0

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