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MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI

LAW OF EVIDENCE
FINAL DRAFT
SEMESTER V

Submitted To: Prof. Chirag Balyan Submitted By: Sakshi Salunke

Enrollment No.: -2017043

TOPIC: Legal Aspects Concerning Proving of a ‘Will’

INTRODUCTION

In this research paper, we will broadly discuss about the need of acknowledgment by testator
to the attesting witnesses as regards his signatures on the Will, if the Will is not signed by the
testator in the presence of the attesting witnesses. Plus, the aspects concerning manner of cross
examination of attesting witnesses before the court of law, and how probate is important before
proving a will linking it to India Succession Act, 1927 as regards proving of a will. Section 68
of Indian Evidence Act, 1872 says “proof of execution of document required by law to be
attested” which is defined as “if a document is required by law to be attested, it shall not be
used as evidence until one attesting witness at least has been called for the purpose of proving
its execution, if there be an attesting witness alive, and subject to the process of the Court
and capable of giving evidence”.1

Provided that it shall not be necessary to call an attesting witness in proof of the execution of
any document, not being a Will, which has been registered in accordance with the provisions
of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom
it purports to have been executed is specifically denied.

1
“Section 68 of the Indian Evidence Act, 1872.” World's Largest Collection of Essays! Published by Experts, July
30, 2015. http://www.shareyouressays.com/knowledge/section-68-of-the-indian-evidence-act-1872/120450.
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WHAT IS A ‘WILL’?

Basically, a will is a legal declaration of the intention of the person regarding his or
enjoyment of the property after his or her death. In legal aspect, a will is required to be signed
by the testator (the person who has made a will) or any other person in this behalf who is
authorized by him or her and has attested at least two witnesses in the presence of the person
who has made the will and in the presence of each other. Those who attest must have also
witnessed the testator putting his signatures or affixing his mark. A will maybe defined as a
continuous gift up to the moment of death. A will is also called as ‘testament’. Will maybe in
oral or in writing or in any form in the absence of a statute. Document can be a will only if it
is executed with an intention of regulating succession after death. 2

PROVING OF A ‘WILL’

In the case of Guardhouse v. Blackburn3, it was held that a will must in the absence of fraud
or coercion be presumed to have been approved by the testator if it has been read over to the
testator in a proper way and the contents of which has been brought to the notice of the testator
before it getting executed. A will is required to be proved by examining at least one attesting
witness if he is alive under section 68 of Indian Evidence Act, 1872 if read with section 53 of
Indian Succession Act, 1925.4

If there’s a will, you must prove that it’s valid. Usually, all you need is the statement from one
or more of the witnesses, in one of these forms, a notarized statement, called a “self-proving
affidavit,” which witnesses signed when they witnessed the will a sworn statement signed by a
witness now, or court testimony from a witness.

In the matter of Ajit Chandra Majumdar v. Akhil Chandra Majumdar6, it was held that
there is always good reason for presuming the holographic will is a genuine will because the
testator’s mind is physically writing the will by himself is more apparent in a holographic will

2
Writinglaw.com. (2019). [online] Available at: https://www.writinglaw.com/section-67-78a-of-indian-
evidence-act-chapter-v/ [Accessed 24 Sep. 2019].
3
Anon, (2019). [online] Available at: https://www.jstor.org/stable/4515316?seq=1#metadata_info_tab_contents
[Accessed 24 Sep. 2019].
4
Rajinder Singh & Anr v. Subedar Hari Singh & Ors, AIR 2000 P&H
257 6 AIR 1960 Cal 551
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than his signatures alone appear on a typed script already written by someone else. Importantly,
a will on a printed form with the blanks filled in the handwriting of the deceased is not
holographic ‘will’.

PROVISO

The section provides special rule in the proviso under which it is asserted that, in case of
registered document, and is not a will, where its execution is not specially denied by the person
executing it the calling of attesting witness is not necessary. If, on the other hand, the execution
of a registered document required by law to be registered is specifically denied then the
attesting witness has to be called to prove it. Under the proviso the rigour of the rule has been
relaxed to some extent. It is not necessary to call an attesting witness unless the execution of
the document is “specifically denied.” Under the proviso to Section 68 the obligation to
produce at least one attesting witness stands withdrawn if the execution of any such document,
not being a will, which is registered, is not specifically denied.

Manner in Which the Profounder of Will has to discharge the burden albeit the proving
of the will:

In the matter of Girija Dutt Singh v. Gangotri Dutt Singh5, the Hon’ble Supreme Court of
India laid down the following three-point test in this regard:

 The will was signed by the testator in the presence of two attesting witnesses has to be
proven by the profounder of the will.
 While the will getting signed by the the testator in the presence of two attesting
witnesses which they should depose that they were been told by the testator that the will
is that of the testator and it is the testator who has signed the ‘Will’.
 Both or all the attesting witnesses to the will must be scrutinised to prove a will is not
requisite but rather at least one attesting witness should be summoned to prove the due
execution of the will.6

5
AIR 1955 SC 343
6
“Role of an Attesting Witness in a Will.” Lawyersclubindia, September 6, 2018.
http://www.lawyersclubindia.com/articles/Role-of-an-attesting-witness-in-a-Will--9349.asp
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Likewise, in the matter of Janki Narayan Bhoir v. Narayan Namdeo Kadam7, the Hon’ble
Supreme Court of India held that, Section 68 of the IEA necessitates that a document which is
requisite by law for attesting shall not be used an evidence, unless, for the purpose of proving
execution, at least one attesting witness to a document has been called in evidence. Therefore,
as per the mandate of Section 68 of the IEA, if an attesting witness is alive or capable of giving
evidence then that attesting witness subject to the process of the court has to be necessarily
scrutinised before the document required by law to is attested as an evidence.

Section 68 of the Indian Evidence Act speaks of on how a document is needed by law to be
attested may be verified. in line with the aforesaid Section, a document required by law to be
attested shall not be used as proof till one attesting witness a minimum of has been immersed
the aim of proving its execution, if there be associate attesting witness alive, associated subject
to the method of the Court and capable of giving an proof. It flows from this Section that if
there be associate attesting witness alive capable of giving proof and subject to the method of
the Court, has got to be essentially examined before the document needed by law to be attested
may be utilized in associate proof. On a combined reading of Section 63 of the Succession Act
with Section 68 of the proof Act, it seems that an individual propounding the desire has to
prove that the will was punctually and with validity dead. that can't be done by merely proving
that the signature on the desire was that of the human however should additionally prove that
attestations were also created properly PRN by clause (c) of Section 63 of the Succession Act.
it's true that Section 68 of the IEA doesn't say that each or all the attesting witnesses should be
examined. However, a minimum of one attesting witness has got to be immersed proving due
execution of the desire as envisaged in Section 63. though Section 63 of the Succession Act
needs that a can has got to be etched a minimum of by 2 witnesses, Section sixty eight of the
proof Act provides that a document, that is needed by law to be attested, shall not be used as
proof till one attesting witness a minimum of has been examined for the aim of proving its due
execution if such witness is alive and capable of giving evidence and subject to the method of
the Court. In a way, Section 68 offers a concession to those that wish to prove and establish a
can in a very Court of law by examining a minimum of one attesting witness even supposing
will has got to be attested at least by two witnesses obligatorily below Section 63 of the
Succession Act. However, what's important and to be noted is that that one attesting witness

7
(2003) 2 SCC 91
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examined ought to be in a very position to prove the execution of a can. to place in different
words, if one attesting witness will prove execution of the desire in terms of the clause (c) of
Section 68, viz., attestation by two attesting witnesses within the manner contemplated in this,
the examination of different attesting witness may be distributed with. The one attesting witness
examined, during this proof has got to satisfy the attestation of a will by him and therefore the
different attesting witness so as to prove there was due execution of the desire. If the attesting
witness examined besides his attestation doesn't, in his proof, satisfy the wants of attestation of
the desire by different witness additionally it falls in need of attestation of will a minimum of
by two witnesses for the straightforward reason that the execution of the will doesn't just mean
the linguistic communication of it by the human however it means that fulfilling and proof of
all the formalities needed below Section sixty three of the Succession Act. wherever one
attesting witness examined to prove the desire below Section 68 of the proof Act fails to prove
the due execution of the desire then the opposite accessible attesting witness has got to be
known as to supplement his evidence to create it complete all told respects. wherever one
attesting witness is scrutinised, and he fails to prove the attestation of the desire by the opposite
witness there'll be deficiency in meeting the obligatory needs of Section 68 of the Indian
Evidence Act.8

Also, another case of Banga Bihara v. Naraja Kishore Nanda 9 , the court held that if a
document is required by law to be attested, no evidence shall be used unless and until at least
one attesting witness has been called for the purpose of proving its execution, if there be an
attesting witness alive and capable of giving evidence subject to the process of court. However,
an attesting witness in proof of the execution of any document shall not be necessary to call an
attesting witness in proof of the execution of any document, not being a will, which has been
registered in accordance with the Indian Registration Act, 1908 and its provisions, unless its
execution have been denied specifically.10

8
http://www.lawyerservices.in/Janki-Narayan-Bhoir-Versus-Narayan-Namdeo-Kadam-2002-12-17
9
(2007) 9 SCC 728
10
http://journal.lawmantra.co.in/wp-content/uploads/2018/03/LEGAL-ASPECTS-CONCERNING-
THEPROVING-OF-A-%E2%80%98WILL%E2%80%99-SECTION-63-OF-THE-INDIAN-SUCCESSION-
ACT1925-READ-WITH-SECTION-68-OF-THE-INDIAN-EVIDENCE-ACT-1872-BY-MR.SHIVAM-
GOELLL.M-W.B.N.U.J.S-KOLKATA.pdf
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WILL TO BE EXECUTED UNDER SUSPICIOUS CIRCUMSTANCES

The question of fact here is that whether a will is surrounded by suspicious circumstances or
not depends upon the case facts and circumstances, the profounder. The propounder has to
justify these circumstances and has to eliminate the suspicion of the court in order to satiate the
conscience of the court. Wills which are all of circumstantial nature which constitute suspicion
cannot be eliminated by mere assertion of the propounder but the wills bearing the testator’s
signature would be executed unless and until the testator has his own rationale for the exclusion
of will. Therefore, the onus of proof gets heavier on the propounder of the ‘will’. Lastly, before
the document gets accepted as the last will, the propounder must eliminate all legitimate
suspicion to submit it before the court.11

WHAT IS THE PROCESS OF PROVING THE VALIDITY OF A WILL?

Before a court can probate a will, it must determine that the will is valid and genuine. Generally,
proving of the validity of a will entails ensuring that it was created and signed by the person
executing the will, called the ‘testator’, and that it complies with state law. Most of the states
prepare will in a way that obliterates any additional action on the part of the executor during
the process of probate.

o Self-proving wills: Wills are considered valid automatically if they are self-proving in
numerous states. The testator and the witnesses sign twice to create self-proving will.
Primarily, the will is signed by the testator in front of two witnesses and the witnesses
then sign the document as well. Furthermore, before a notary, that the will was signed
in each other’s presence and then affixes notary seal to the document.
o Witness Verification: Most states require that the witnesses affirm to the court that
testator actually signed the will only if a will is not self-proving. Usually, it is affirmed
by the witnesses that they saw the testator sign the document. The witnesses in some
instances affirm that the testator confirmed his signature which appeared on the will.
Generally, through sworn oral testimony, the witnesses provide information to the

11
Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369
“Suspicious Circumstances in the Will: India Judgments: Law.” CaseMine, n.d.
https://www.casemine.com/search/in/suspicious circumstances in the will.
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court. However, affidavit is allowed by some states for the witness to provide
information and state law may only be needed for the testimony of one witness.
o Lost, unidentifiable or deceased Witness: Problems are aroused when one or both
witnesses cannot be located, cannot be identified or have died. Laws are dictated by the
state on how the executor should address this situation. The executor will have to
perform a diligent search for the witnesses in most of the states. If the witnesses still
cannot be located, some states allow the executor to validate the will by providing
sworn testimony that he or she believes the will is valid and authentic.
o Holographic Wills: State laws on holographic wills vary dramatically. Generally, a
holographic will is one written by the testator and not witnessed. Some states require
that the entire holographic will be written in the testator’s handwriting. Proving a
holographic will is much more difficult for the executor because evidence must be
provided to the court proving that the will was actually executed by the testator.
Commonly, known handwriting samples from the testator are submitted to the court for
comparison with the will.12

WHAT IS A PROBATE?

'Probate' is the copy of a Will certified under the seal of a court of competent jurisdiction with
a grant of administration of the estate of the testator. A probate can be granted only to the
executor appointed under the Will. Furthermore, a probate is essential only and only if the Will
is for immovable assets in several states.13

12
“What Is Probate of a Will and Why Is It Important?” Money control. Money Control, n.d.
https://www.moneycontrol.com/news/business/personal-finance/what-is-probate-of-a-will-and-why-is-
itimportant-2482993.html.
Welcome to LexisNexis - Choose Your Path, n.d.
https://www.lexisnexis.com/uk/lexispsl/willsandprobate/document/393767/55KG-P271-F18C-512S-
0000000/Validity_of_Wills_overview#.
“Attesting Witness: Whether Bound by Contents of the Document?” Lawyersclubindia, June 18, 2018.
http://www.lawyersclubindia.com/articles/Attesting-witness-Whether-bound-by-contents-of-the-document-
9121.asp.
13
S3-eu-west-2.amazonaws.com. (2019). [online] Available at: https://s3-eu-west-2.amazonaws.com/lawcom-
prod-storage-11jsxou24uy7q/uploads/2017/07/Making-a-will-consultation.pdf [Accessed 24 Sep. 2019].
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ISSUE OF PROBATE BY THE COURT

On the satisfaction that the will in question has been validly executed the court will grant
probate to the executor named in the will.

PROBATE OF A WILL

It is pertinent to understand the process of obtaining the Probate of a Will before a will. A
Probate is granted by the High Court with the court seal and a copy of the Will attached. To
seek a Probate, the executor of the Will, as a Petitioner is required to file the petition making
before the competent court through an advocate. Thereafter, usually when the court asks the
Petitioner for establishing the testator’s death proof as well as the proof that the will has been
executed validly by the testator and it is the last will and testament of the deceased. After
receiving the petition for a Probate, if any, the court issues a notice to the next of kin of the
deceased to file objections, to the granting of the probate and it also directs the publication of
a citation on board to notify the general public. If there is no objection, on the other hand, if
the next of kin of the deceased files their respective consent to the grant of Probate, then court
grants the Probate, however, if the next of kin of the deceased files their respective objections
to the grant of Probate, then to enable parties to lead evidence in the matter the Probate Petition
becomes the testamentary suit.14

.
DO ALL WILLS NEED TO GO THROUGH PROBATE?

Probate sounds like a complex and expensive process. However, probate is actually a basic
legal procedure and is the way that some assets must be formally passed from the person who
is deceased to his or her heirs or beneficiaries. Necessity of probate depends on the type of
property or how it is owned and what the state laws are. If a person dies and leaves a will then
a probate is requisite to implement the provisions of that will. However, a probate process also
can happen if a person dies without a will and his property that needs to be distributed under
the state intestacy law.15

14
Helpline law Probate of a Will, n.d. http://www.helplinelaw.com/real-estate-wills-
probate-andtrust/PWIL/probate-of-a-will.html.
15
https://info.legalzoom.com/wills-through-probate-4654.html
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Further, no right as an executor or legatee can be established in any Court of Justice, unless a
Court of competent jurisdiction in India has granted Probate of the Will under which the right
is claimed. However, this provision applies only to the cases, which are referred above.
Therefore, a Probate of Will is compulsorily required, only if the Will is made in any one of
the aforesaid two cases, otherwise, it is not compulsorily to Probate the Will.16

Also, otherwise, it would be advisable to seek Probate of Will in case of:

(i) When there are problems with an existing Will

(ii) When the beneficiaries have predeceased the testator and such other cases.

GROUNDS UNDER WHICH A WILL AFTER A PROBATE CAN BE CONTESTED

Probate of a will maybe revoked on certain grounds as provided under the Succession Act.
However, if the person challenging the Probate is able to convince the competent court that it
is necessary to revoke the Probate 'for just cause', then only such revocation can be put in
effect.17

The Succession Act provides for certain grounds on which a Probate of a Will may be revoked,
however such revocation can only be effected if the person challenging the Probate is able to
convince the competent court that it is necessary to revoke the Probate 'for just cause'.20 Further
for challenge of a probate, the law of limitation must also be abided by, as probate operates as
a 'right in rem' granted by the competent court, operates from the date of grant of the probate,
therefore a challenge which is hopelessly barred by limitation cannot be entertained by any
court of law. Further, an order of revocation of the Probate would operate prospectively and
such revocation does not obliterate bona fide transactions entered into by the executor during
the pendency of the Probate. 18 The challenger can challenge the Probate of Will on the
following grounds:

16
Info.legalzoom.com. (2019). Do All Wills Have to Go Through Probate? [online] Available at:
https://info.legalzoom.com/wills-through-probate-4654.html [Accessed 24 Sep. 2019].
17
https://www.legalzoom.com/articles/do-all-wills-need-to-go-through-probate.
“Statutory Requirements for a Valid Written Will.” Statutory Requirements for a Valid Written Will - Law Shelf
Educational Media, n.d. https://lawshelf.com/courseware/entry/statutory-requirements-for-a-validwritten-will.
18
Kini, Ashok. “Execution of A Will Can Be Held to Be Proved When It Is Found to Be Ordinarily Free from
Suspicious Circumstances, Reiterates SC [Read Judgment].” Live Law - Legal News India, Law Firms News,
Law School News. Live Law, November 30, 2018. https://www.livelaw.in/execution-of-a-will-can-be-held-tobe-
“How to Obtain Probate of a Will.” The Economic Times. Economic Times, May 16, 2016.
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1.The proceedings to obtain the grant of Probate were defective in substance; or

2.The grant of Probate was obtained fraudulently by making a false suggestion, or suggestion,
or by concealing from the court something material to the case; or

3.The grant of Probate was obtained by means of an untrue allegation of a fact essential in point
of law to justify the grant, though such allegation was made in ignorance or inadvertently;

4. The grant of Probate has become useless and inoperative through circumstances; or

5. The person to whom the grant of Probate was made has wilfully and without reasonable
cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter
VII of this Part or has exhibited under that Chapter an inventory or account which is untrue in
a material respect.19

Seeking grant of Probate of Will is a time-consuming task to be complied by the executor of

the Will of the testator, for which, the testator also has to spend time and money towards
payment of court fees depending upon value of assets bequeathed under the Will. 20 However,
as stated above, it is compulsory to seek grant of Probate of Will only in certain cases, whereas,
it is not compulsory to seek grant of Probate of Will in other cases.

CONCLUSION

Therefore, the researcher has inferred that Section 68 of the IEA mandates that a will is
necessarily proved by scrutinising that the validity of a will under section 68 of IEA should be
proved before probate and the logical rationale behind this is explained above. Also, it is
observed that the process of obtaining will through probate is appropriate before the Indian
courts. Moreover, Section 71 of IEA has no application while one attesting witness fails
proving the execution of the will and others which are available are called.

19
India, legal Service. “Wills and Codicils.” Wills and Codicils - Register Your Will - Valid WILL, n.d.
http://www.legalserviceindia.com/wills.htm.
20
https://economictimes.indiatimes.com/news/politics-and-nation/courts-can-rely-on-electronic-recordswithout-
certificate-supreme-court/articleshow/62777759.cms?from=mdr India, legal Service. “Wills and Codicils.” Wills
and Codicils - Register Your Will - Valid WILL, n.d. http://www.legalserviceindia.com/wills.htm.
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