Proving a Will when attesting Witness is not Found

An attesting witness need to prove the Will

An instrument, such as a Will, mortgage deed, or gift deed, which needs to be compulsory attested as per law, shall not be used in evidence, unless one attesting witness has been called to the court for proving its execution, if the attesting witness is alive, living with in the sphere of the process of the court, and can give evidence, under Section 68 of the Indian Evidence Act, 1872 (IEA).

That means as per section 68 of the IEA, to prove a document that requires attestation, one attesting witness need to be called in to the court to provide evidence of its proper execution, if he/she is alive and can be brought to the court for giving evidence. The direct evidence of the attesting witness is primary evidence.

In other words, this section says if there is an attesting witness alive, capable of giving evidence, and subject to the process of the court, that witness needs to be examined before using any instrument as required by law to be attested, as evidence in the court.

Otherwise, the signature or handwriting to be proved

If no such a testing witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person, as per Section 69 of IEA.

Here the words no witness can be found means that in cases where the witness cannot be produced because of not tracing out and cannot be brought to give evidence due to physical or mental disability or other reasons.

Admission of other party is enough to prove

On the other hand, the admission of a party to compulsory attested document against himself shall be sufficient to prove of its execution against him, under section 70 of the IEA.

Witness denies Will to be proved by other means

If an attesting witness of a Will denies or does not collect the execution of the document, the execution may be proved by other evidence under Section 71 of the IEA.

Court can compare signature or handwriting

The signature or handwriting of a document like will can be proved by comparing it with a proved or admitted signature or handwriting under Section 73 of the IEA.

That means, the court is entitled to make comparison of disputed and admitted signatures.

Proving the genuineness of the Will

In short, the mode of proving a Will does not ordinarily differ from that of proving any other document, except the special requirement of attestation prescribed in the case of a Will, as per Section 63 of the Indian Succession Act.

The onus of proving the Will is on the Administrator. In the absence of suspicious circumstances surrounding the execution of the Will, the proof of testamentary capacity and signature of the Testator, as required by law, are sufficient to prove it.

In conclusion

In essence, if no witness is alive then the signatures of the witnesses and the testator need to be proved by other means, as in the case of any other document, says Section 69 of the IEA.

In such a case, such a document can also be proved based on the opinion of others who acquainted with the handwriting or signature of the executant (as provided for in Section 45 and 47 of the IEA) or by directly comparing the handwriting or signature in the Will, as provided in Section 73 of the IEA).

Above all, the court itself is sufficiently entitled to make comparison of disputed and admitted signatures. After handwriting experts make a comparison of the disputed writing and the proved writing, the court has enough power to use its own eyes to arrive at a conclusion. This power should be used with caution and in extremely essential circumstances.

To prove the execution of the Will, mere examination of its scribe or proof of his signature is of no much value. It is better for the scribe to sign as an attesting witness rather than its scribe alone. The scribe is not a legal participant in the execution of a Will as the attesting witness is.

If the attesting witness denies or does not recollect execution of the documents its execution needs to be proved by other means, as per Section 71 of the IEA.

In the absence of any suspicious circumstances, the presumption of genuineness of the Will would remain even though the scribe and the witnesses are dead and the Will is not proved by other means.

To prove the genuineness of the Will, the court should consider not only the testimony of witnesses but also the surrounding circumstances brought out in evidence.

Further reading

  1. Nagulapati Lakshmamma v Mupparaju Subbaiah, 1998 [AIR 1998 SC 2904] : The judgment says that the attesting witness must sign the document and cannot delegate the function to another person.
  2. Jagdish Chand Sharma v Narain Singh Saini [AIR 2015 SC 2149]: The witness must see or be knowledgeable of the testator signing the Will.
  3. Veerattalingam & others v Ramesh & others [AIR 1990 SC 2201]: The Will must be construed as a whole and not piecemeal.
  4. N.Krishnammal v R. Ekambaram & ors [AIR 1979 SC 1298]: Will written in non-legal language must be construed in the legal sense of the term.
  5. Pentakota Satyanarayana & ors v Pentakota Seetharatnam & ors [AIR 2005 SC 4362]: Sub-Registrar’s endorsement that the executants had acknowledged execution before him amounts to attestation
  6. Janki Narayan Bhoir v Narayan Namdeo Kadam [AIR 2003 SC 761]: An attesting witness, if he is alive, must be examined so as to prove the Will. If the witness is not alive other means can be explored to prove it.
  7. State (Delhi Administration) v Pali Ram [ 1979 AIR 14]
  8. Rajeshbhai Muljibhai Patel v The State of Gujarat [ AIR 2020 SC 81]
  9. Indian Evidence Act, 1872
  10. Ratamlal & Dhirajlal : The Law of Evidence, 25th ed, 2015