SANKARPRASAD (MNGR) 11 September 2024

How to prove an unregistered will validity

A Hindu Brahmin left his property through an unregistered will.

Some of the beneficiaries challenged this will in court and asked to show the authenticity.

Both the witnesses were deceased.

Main questions raised are :

1)Signature of the Testator is not matching with the old recorded signatures.( This hasbeen ratified and proven this is false allegation).

2)Paper on which Will written is not that much of old ( Looks like that).

3) Ink used for writing of this will is different and looks that new pen might have used for writing Will after death of Testator( on old signed papers).

Both the witnesses were deceased during Pandemic COVID time.

Pl guide me how to proceed further.

Best Regards

SANKARA PRASAD.

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3 Replies

T. Kalaiselvan, Advocate (Advocate) 11 September 2024

If both attesting witnesses to an unregistered will are deceased, you can prove the will by showing that at least one witness's attestation was in their handwriting.

The Supreme Court ruled that it is sufficient to prove that one witness's attestation was in their handwriting, even though Section 68 of the Evidence Act requires proof of both witnesses' attestations.

You must also prove the testator's signature and handwriting. If there is an attesting witness who is still alive, you can call them to prove the will's execution. You can also call witnesses who can prove the testator's handwriting

In Durga Bai Vs. C S Pandari Bai of Madras high court, Judgment pronounced on: 27.02.2017;

f the attesting witnesses are really dead the plaintiffs can very well prove the will by resorting to Section 69 of the Indian Evidence Act by examining one of the persons who has acquaintance with the signature of any one of the attesting witnesses and also the executant of the document. Before resorting to the provision under Section 69 of the Indian Evidence Act to prove the will, it must be established by the plaintiffs the factum of death of attesting witnesses.