Section 69 of the Evidence Act, 1872, Section 63(1)(c) of the Succession Act, 1925, and Section 3 of the Transfer of Property Act, provide the legal requirements for the attestation and execution of a will. The witnesses must prove the genuineness of the will, including the testator’s handwriting, and any suspicious circumstances must be explained. When granting probate, the court must take into consideration the background facts of the will, such as whether the testator had full knowledge and understanding of the contents, and if a plea of undue influence is taken, the burden of proof lies on the objector. In cases where the attesting witness is dead, out of jurisdiction, or kept out of the way by the adverse party, Section 69 of the Evidence Act allows for the execution of the will to be proved by examining witnesses who are able to prove the handwriting of the testator or executants.
Evidence Act, 1872, Section 69 – Succession Act, 1925, Section 63(1)(c) – Will is to be attested by two witnesses in terms of Section 63(1)(c) of the Succession Act, 1925 – Indisputably, the requirement of Section 68 of the Evidence Act, 1872 (the Act) is required to be complied with for proving a will – Section 63(1)(c) of the Succession Act mandates attestation by two witnesses – Thus, not only must the execution of will be proved, but actual execution must also be attested by at least two witnesses – Attestation of execution of will must be in conformity with the provisions of Section 3 of the Transfer of Property Act – Transfer of Property Act, S. 3. [Para 12]
Evidence Act, 1872, Section 68 – Will – A will ordinarily must be proved keeping in view the provisions of Section 63 of the Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed – However, signature and handwriting, as contemplated in Section 69, must be proved. [Para 18]
“Attestation” and “execution” connote two different meanings. Some documents do not require attestation. Some documents are required by law to be attested. [Para 13]
Probate – Will – Court, while granting probate of the will, must take into consideration all relevant factors – It must be found that the will was product of a free will – The testator must have full knowledge and understanding as regards the contents thereof – For the said purpose, the background facts may also be taken note of. [Para 15]
Probate – Will – Undue influence – Where, a plea of undue influence was taken, the onus therefor would be on the objector and not on the offender. [Para 15]
Evidence Act, 1872, Section 69 – Will – 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 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 – The burden of proof then may be shifted to others. [Para 17]
