What is Execution of will by attesting witness?
The evidence or examination of attesting witness is mandatorily required only in case when the question of whether the will is genuine or validity of the will is in question.It therefore is obvious that a will can’t be used as evidence without examining the attesting witness. Proof of execution of will by attesting witness is a basic and mandatory requirement
The Hon’ble Madras High Court has categorically stated in Malliga vs P.Kumaran in SA No.241 of 2015, judgment pronounced on 23.03.2022 has held that in para 19 of its order “The above judgement in no uncertain terms laid down the law to the effect that a Will shall not be used as evidence until it is proved in the manner prescribed under Section 68 of the Evidence Act and this position cannot be diluted even if the opposite party has not specifically denied the execution of the Will.”
Execution of will -Section 68 of the Indian Evidence Act
Witness not disqualified by interest or by being executor.—No person, by reason of interest in, or of his being an executor of, a Will shall be disqualified as a witness to prove the execution of the Will or to prove the validity or invalidity thereof.
Proof of will in accordance with Section 68 of the Indian Evidence Act. When a will makes a bequeath in favour of the attesting witnesses it is to be treated as void in terms of Section 67 of the Act.
Section 67 of The Indian Succession Act, 1925
Effect of gift to attesting witness.—A Will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting or the wife or husband of such person or any person claiming under either of them.”
The law was once and for all settled by the Hon’ble Supreme Court in [Ramesh Verma (Dead) Through Legal representatives Vs.Lajesh Saxena (dead) by legal representatives and another] reported in 2017 1 SCC 257. The relevant portion in the judgement is extracted hereunder :-
- A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.
The Hon’ble Supreme Court in [Jagadish Chand Sharma Vs. Narain Singh Saini (Dead) through Legal representatives and others] in 2015 8 SCC 615. Has held –
22.1. In the evidentiary context Section 68 of the Act 1872 enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of Court and capable of giving evidence proves its execution. The proviso attached to this Section relaxes this requirement in case of a document, not being a Will, but has been registered in accordance with the provisions of the Indian Registration Act 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
The Hon’ble Supreme Court in a judgment reported in (2017) 1 SCC 257 in para 13 as held as follows:
“13. A will like any other document is to be proved in terms of the provisions of Section 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.”
Proper execution of will is an important aspect and the examination of even one attesting witness is extremely important. If you need any assistance for filing probate petition kindly click here
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