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Deepak (Nil)     29 December 2024

Attesting witnesses of a will deed

Dear Learned Advocates

We have filed a civil suit for a claim in share of a property. We have a Registered Will executed in our favour and  are claiming our share on the basis of this document. I read that as per law, the Will would be considered as valid evidence provided one of the attesting witnesses appear in court.

In our case, we had tried contacting the attesting witnesses but in the case of the 1st attesting witness, his phone was switched off despite calling him repeatedly (Probably the number was not in use). We had even gone to his address where the residents did not know anything about him or his family. We couldnt find the address of the 2nd attesting witness.

Since we couldnt trace the attesting witnesses nor their family members (we never met the family members or their relatives. The attesting witnesses were only known to the testator, who is no more), how can I prove the Will Deed without the attesting witnesses?

I request anyone for any suggestions othwerwise it would have a detrimental effect on our case as this Will Deed is an imporatant document. 

 

Thanks  



Learning

 7 Replies

T. Kalaiselvan, Advocate (Advocate)     29 December 2024

To prove a registered will in the absence of both attesting witnesses, you can use Section 69 of the Indian Evidence Act.

You must first prove that the attesting witnesses are dead or unavailable.

You must also prove that the signature of the person who executed the will is in their handwriting. 

You can also examine witnesses who can prove the testator's handwriting.

The Apex Court’s judgement in the case of V. Kalyanaswamy (Dead) by Legal Heirs Vs. L. Bakthavatsalam (Dead) by Legal Heirs has, while considering the various sections of the Evidence Act and the Succession Act, held that the fate of the transferee or a legatee, under a will required to be attested by law, is not placed at the mercy of the attesting witnesses. The law enables proof to be effected despite denial of the execution of the Will by the attesting witness. In cases that fall within the realm of Section 69 of the Evidence Act, the Section 68 of IEA requirement of proving attestation by both the witnesses by examining one witness, has been dispensed with. Instead, it simply needs to be proven that the attestation of at least one attesting witness was in his/her handwriting.

Isaac Gabriel (Advocate)     29 December 2024

Whether the property in question  is ancestral, or purchased through a sale deed ? In whose possession at present?

 

kavksatyanarayana (subregistrar/supdt.(retired))     29 December 2024

Who executed the will and who are the beneficiaries as per Will?  Are all the beneficiaries attend court?

Real Soul.... (LEGAL)     30 December 2024

 

If you have registered will deed why you would need to prove it. The attesting authority is registrar is enough evidence the document is executed within purview of law.

Just submit the will and onus to prove it wrong is upon the disputer, consult a good lawyer  

Dr. J C Vashista (Advocate )     30 December 2024

I concur the opinion and advise of learned expert Mr. T Kalaiselvan.

The beneficiary of will is mandatorily to prove signing the testator in his / her presence, in terms of Section 69 of the Indian Evidence Act, 1872.

However, provisions of Section 68 of the IEA is applicable to the instruments other than a will. 

P. Venu (Advocate)     30 December 2024

Your personal inquiries cannot take the palce of due process. You have the option to summon the said witnesses through the Court.

Advocate Bhartesh goyal (advocate)     31 December 2024

Every will either registered or unregistered has to be proved as per sec 63 of Indian  Succession Act and sec 68 of Indian Evidence Act .In case witnessed of will are not traceable then you can prove will as per sec's 69,70 and 71 of Indian Succession Act.

 


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