WILL – HOW TO PROVE?

Supreme Court, Advocate, Law, Legal


Family relations becomes ugly at the time of distribution of family property, especially distribution after the death of Head of the Family. Will is a fragile document. It is so fragile that even a subsequently executed unregistered WILL may even supersede earlier executed and registered WILL.


The Question is how to prove WILL. It has to be proved by at least one of the attesting witness, if found and is in a position to depose. Generally, such attesting witness gives evidence only of execution of WILL in his presence. This may destroy the whole case.


Attesting Witness has to depose about (1) Execution of WILL in his presence and ALSO (2) attestation of other attesting witness. If you have a case in which attesting witness has not deposed as per (2) , you will win the case.


Supreme Court in the matter of V. Kalyanaswamy (D) by L.Rs. and Ors. Vs. L. Bakthavatsalam (D) by L.Rs. and Ors. has held as above in the following words :- 

In the case of a Will covered Under Section 63 of the Indian Succession Act, it is indispensable that at least one attesting witness must not only be examined to prove attestation by him but he must also prove the attestation by the order attesting witness [See MANU/SC/0799/1995(6) SCC 213]. This Court has taken the view that while it is open to prove the Will and the attestation by examining a single attesting witness, it is incumbent upon him to prove attestation not only by himself but also attestation by the other attesting witness.


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