Anonymous
Asked September 25, 2016

If the attesting witness dies

  • 1 Answer
  • 1909 Views

How to prove Will when the attesting witnesses who filed their affidavits at the time of filing probate petition are no more at the time of trial?

Answer 1

In the case where the attesting witnesses who filed their affidavits at the time of filing probate petition are no more at the time of trial section 69 of The Indian Evidence Act, 1872 applies. Section 69-  Proof where no attesting witness found.—If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, 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.  It provides that if no such attesting witness can be found, it must be proved that attestation of one attesting witness at least is in his handwriting and also that the signature of the person executing the document is in the handwriting of that person. The Supreme Court has held that it would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite a diligent search. Only in that event, the will may be proved in the manner indicated in Section 69 i.e. by examining witnesses who were able to prove the handwriting of the testator or executants.

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