Proving a Will: Does One Attesting Witness Suffice When Scribe Isn't Examined?

In estate planning and inheritance disputes, few documents carry as much weight as a last Will and testament. But what happens when proving its authenticity becomes contentious? Imagine a scenario where one of the attesting witnesses has proved the Will, but the scribe, namely Dost Mohammad, has not been examined. This raises critical questions about compliance with Indian law on Will execution and proof. Is the Will still valid? This blog post breaks down the legal principles, examines relevant precedents, and offers practical insights—remember, this is general information, not specific legal advice. Consult a qualified lawyer for your case.

The Core Legal Issue: Attesting Witnesses vs. Scribe

The question at hand is straightforward yet pivotal: One of the Attesting Witness has Proved the Will but Scribe Namely Dost Mohammad have Not been Examined. Under Indian law, Wills for Hindus, Buddhists, Sikhs, and Jains are governed by the Indian Succession Act, 1925, while proof standards fall under the Indian Evidence Act, 1872.

Key Requirements for a Valid Will

• Section 63, Indian Succession Act, 1925: A Will must be signed by the testator in the presence of at least two attesting witnesses, each of whom must sign or affix their mark in the presence of the testator. This ensures the testator's free will and mental capacity.
• Section 68, Indian Evidence Act, 1872: For attested documents like Wills, at least one attesting witness must be called to prove its execution, if alive and available. Failure to do so can doom the proof process. 2017 0 Supreme(HP) 424

In the scenario, only one attesting witness (e.g., Harilal Sharma) has been examined, while the second (Tej Narain Singh) and scribe Dost Mohammad remain unexamined. This gap creates significant hurdles. 2019 0 Supreme(Jhk) 1420

The Role of the Scribe: Not an Automatic Attesting Witness

A common misconception is that the scribe—who drafts or writes the Will—counts as an attesting witness. Courts have clarified otherwise:- The scribe is not an attesting witness unless there's clear evidence of intent to attest. Merely writing the Will doesn't qualify them. 2000 0 Supreme(SC) 323- In one case, A mere perusal of Ext.A3 would show that there is no indication that the scribe affixed his signature as one of the attesting witnesses. 2019 0 Supreme(Ker) 376- Further, the scribe affixed his signature only in the status of scribe. The oral evidence tendered by the scribe as PW2 did not specify anything with respect to his intention to stand as an attesting witness. 2019 0 Supreme(Ker) 376

Thus, Dost Mohammad's absence doesn't fill the void left by the missing second attesting witness. His testimony alone cannot substitute for the attestation requirement. 2004 0 Supreme(HP) 268

Proof Challenges in Practice: Witness Examination Failures

Courts demand rigorous proof for Wills due to their irrevocable nature and fraud risks. Here's why this case falters:- Only one attesting witness examined: Harilal Sharma testified, but Tej Narain Singh did not appear. This breaches Section 68's mandate. 2019 0 Supreme(Jhk) 1420- Scribe's non-examination compounds doubts: Without Dost Mohammad, no secondary corroboration exists. The absence of the scribe... further complicates the matter. 2004 0 Supreme(HP) 268

Precedents underscore this:- Courts have ruled that the absence of examination of attesting witnesses undermines the proof of the Will. In cases with no attesting witnesses examined, Wills were invalidated. 1999 0 Supreme(AP) 760 2012 0 Supreme(SC) 542- The Supreme Court emphasized: the scribe's testimony is insufficient to establish the Will's validity in the absence of attesting witnesses. 2017 0 Supreme(HP) 424

Insights from Judicial Precedents

Indian courts consistently prioritize strict compliance. Let's integrate key rulings:

Strict Adherence to Two Witnesses

• In a Bangladesh appeal, it the mandatory provision that at the time of making a will at least one attesting witness will have to remain present to assume the mental position of a testator but the aforesaid testimony of the PW 2 creates a serious doubt.

  Sudhir Kumar Majumder and another … Appellants -VersusBicharan Majumder and others …Respondents - 2024 Supreme(BD)(SC) 11794

• Another held: The mandate of two attesting witnesses under Section 63 of Indian Succession Act has not been complied with in Ext.A3. Hence it has no legal effect. 2019 0 Supreme(Ker) 376

Failure of Single Witness Proof

• Where one witness (DW-2) was examined but faltered: he had failed to prove the due attestation of will... and other attesting witness namely Safique Mohammad though available has not been examined... Section 71... would not be applicable. 2018 0 Supreme(Chh) 262
• In a consolidation dispute, The other attesting witness of the will, namely, Mohabi and scribe of the will were not produced. In such circumstances due execution of the will was not proved beyond reasonable doubt. 2014 0 Supreme(All) 2036

Positive Proof When Met

• Contrastingly, where both an attesting witness (Sant Ram) and scribe (Kamal Kumar) were examined, execution was upheld. 2018 0 Supreme(P&H) 1209
• Courts also stress: the attestation by two witnesses... cannot be relaxed and what is material... lies on the requirement... to summon and examine atleast one of the attesting witnesses, if alive, capable of giving evidence. (From broader analysis in sources)

These cases affirm: Partial proof isn't enough. Suspicious circumstances, like unexamined witnesses, invite rejection.

Potential Implications and Strategies

If only one witness proves the Will and the scribe is absent:- Validity at risk: Courts may deem it unproved, favoring intestate succession.- Burden on propounders: Those relying on the Will must dispel doubts.

Recommendations (General Guidance):- Seek the second witness (Tej Narain Singh) if traceable.- Gather alternative evidence: Handwriting experts, contemporaneous accounts, or family admissions.- Consider probate proceedings early to test proof formally.

Key Takeaways

• At least two attesting witnesses required; scribe doesn't count automatically. 2000 0 Supreme(SC) 323
• Examine at least one attesting witness per Section 68—or risk failure. 2017 0 Supreme(HP) 424
• Unexamined parties like Dost Mohammad weaken, not strengthen, the case. 2004 0 Supreme(HP) 268

Proving a Will demands precision. While one witness helps, it's typically insufficient without the full complement. For personalized advice, engage a legal expert familiar with your jurisdiction's nuances.

References:2019 0 Supreme(Jhk) 1420 2017 0 Supreme(HP) 424 1999 0 Supreme(AP) 760 2000 0 Supreme(SC) 323 2004 0 Supreme(HP) 268 2012 0 Supreme(SC) 542

Sudhir Kumar Majumder and another … Appellants -VersusBicharan Majumder and others …Respondents - 2024 Supreme(BD)(SC) 11794

This post is for informational purposes only and does not constitute legal advice.