Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Proper attestation and proof are critical for the Will's validity; failure to meet these standards can render the Will invalid or unproved in court ["DANDAPANI SAHU vs GAVALAPU SAIRAM - Orissa"], ["Saiby, W/o.Jacob vs Mary W/o. Eldhose - Kerala"].
Analysis and Conclusion:
Drafting a Will is a crucial step in estate planning, ensuring your assets are distributed as per your wishes after your demise. But a common question arises: will needs to be attested? In India, the validity of a Will hinges on strict legal formalities, particularly attestation by witnesses. Failing this can lead to disputes, invalidation, or prolonged probate battles. This guide breaks down the requirements under the Indian Succession Act, 1925, proof processes, and insights from judicial precedents to help you navigate this essential aspect of succession law. Note: This is general information; consult a legal professional for personalized advice.
Under Section 63(c) of the Indian Succession Act, 1925, a Will must be attested by at least two witnesses. Each witness must have seen the testator (the person making the Will) sign or affix their mark to the Will, or seen another person sign it in the testator's presence and by their direction. Alternatively, witnesses may receive a personal acknowledgment of the signature from the testator. Sridevi VS Jayaraja Shetty - 2005 1 Supreme 684
Key elements include:- Witnesses must sign in the presence of the testator. Sridevi VS Jayaraja Shetty - 2005 1 Supreme 684- No specific form of attestation is prescribed; their signatures in the testator's presence suffice. Sridevi VS Jayaraja Shetty - 2005 1 Supreme 684Yumnam Ongbi Tampha Ibemma Dev VS Yumnam Joykumar Singh - 2009 0 Supreme(SC) 458- Witnesses need not sign simultaneously or in each other's presence. Sridevi VS Jayaraja Shetty - 2005 1 Supreme 684
As emphasized in judicial rulings, The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will; (b) It is mandatory to get it attested. SHRIKANT MAHTO AND ORS vs BHAWANI DEVI AND ORS - 2025 Supreme(Online)(Jhk) 4301
Proving a Will's execution and attestation is paramount, especially in probate proceedings. Section 68 of the Indian Evidence Act, 1872, mandates examining at least one attesting witness to establish due execution, unless all witnesses are unavailable. The witness's testimony should confirm the testator's signing or acknowledgment in their presence and their own signing in the testator's presence. Sridevi VS Jayaraja Shetty - 2005 1 Supreme 684Yumnam Ongbi Tampha Ibemma Dev VS Yumnam Joykumar Singh - 2009 0 Supreme(SC) 458
In one case, the court noted, In terms of Section 68 of the Indian Evidence Act, at least one of the attesting witnesses is to be examined to prove due execution of the Will. Madhavi (Died; LRs. Impleaded) W/o Late Balakrishnan VS Bhagyam W/o Raghavan - 2022 Supreme(Ker) 1133
If attesting witnesses deny execution, do not recollect, or are unavailable, Section 71 of the Evidence Act allows proof through other evidence—but only after attempting to examine capable witnesses. It does not permit relying solely on the propounder's (person presenting the Will) testimony if witnesses are available. Sridevi VS Jayaraja Shetty - 2005 1 Supreme 684Yumnam Ongbi Tampha Ibemma Dev VS Yumnam Joykumar Singh - 2009 0 Supreme(SC) 458
Courts scrutinize suspicious circumstances, requiring overwhelming evidence for validation. For instance, even if only one witness fully supports execution and others partly do, totality of evidence can uphold the Will if no suspicion arises. Sanjay Kumar Datta (deceased) VS Kamlesh Kumari Datta - 2023 Supreme(Jhk) 11
Unlike ancient documents, Section 90 of the Evidence Act does not presume due execution for Wills. The propounder bears the burden, particularly when denied. The presumption under Section 90 of the Indian Evidence Act does not apply to Wills, necessitating proof of execution and attestation by the propounder. Madhivanan (Died) VS Dhanaraj - 2024 Supreme(Mad) 2208
In a second appeal, the court reversed a trial court's reliance on Section 90, stressing proof via witnesses when execution is contested. Madhivanan (Died) VS Dhanaraj - 2024 Supreme(Mad) 2208
One ruling clarified: iv) Each of the said witnesses must have seen the testator signing of affixing his mark to the will and each of them should sign the will in presence of the testator. The will should be attested by two or more witnesses. Harinarayan VS Kusum Gupta - 2017 Supreme(MP) 262
While strict, exceptions exist:- All witnesses dead/unavailable: Other evidence under Section 71. Sridevi VS Jayaraja Shetty - 2005 1 Supreme 684- Registration: No substitute for attestation. JAGDISH CHAND SHARMA VS NARAIN SINGH SAINI (DEAD) THROUGH HIS LRs. - 2015 4 Supreme 96- Undue influence/fraud: Vitiates the Will. Manilal Sunderji Doshi VS Kamal Manilal Doshi - 2013 Supreme(Bom) 559
Courts appreciate evidence holistically: Appreciation of evidence in case of probate of WILL is no different from that in other cases – Evidence is to be looked into its totality. Sanjay Kumar Datta (deceased) VS Kamlesh Kumari Datta - 2023 Supreme(Jhk) 11
To avoid challenges:- Choose at least two reliable witnesses present during signing.- Have them sign in your presence after you sign/acknowledge.- Examine at least one witness in probate.- Document circumstances if witnesses may be unavailable.- Register optionally, but prioritize attestation.
Ensure at least two witnesses are present during the execution of the Will and sign in the testator's presence. Sridevi VS Jayaraja Shetty - 2005 1 Supreme 684
Attestation is non-negotiable for a Will's validity in India, safeguarding against fraud and ensuring the testator's intent. Always prove via attesting witnesses, mindful of no presumptions or registration shortcuts. By following Section 63(c) and related provisions, you minimize disputes.
Key Takeaways:- Mandatory: Two witnesses seeing/acknowledging testator's signature. Sridevi VS Jayaraja Shetty - 2005 1 Supreme 684- Proof: Examine one witness; others if needed. Yumnam Ongbi Tampha Ibemma Dev VS Yumnam Joykumar Singh - 2009 0 Supreme(SC) 458- No presumption under Section 90. Madhivanan (Died) VS Dhanaraj - 2024 Supreme(Mad) 2208- Flexible on sequence/hostility with strong evidence.
This overview draws from statutes and cases like Sridevi VS Jayaraja Shetty - 2005 1 Supreme 684, Yumnam Ongbi Tampha Ibemma Dev VS Yumnam Joykumar Singh - 2009 0 Supreme(SC) 458, JAGDISH CHAND SHARMA VS NARAIN SINGH SAINI (DEAD) THROUGH HIS LRs. - 2015 4 Supreme 96, and others. For your situation, seek expert legal counsel—laws evolve, and facts vary.
#WillAttestation #IndianSuccessionAct #EstatePlanningIndia
“attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction ... It needs to be stated here that Opposite Parties 1 & 2 being the Plaintiffs and the DHr are the contesting party in the cast at hand. 2. Present C.M.P. is directed against order dated 17.2.2025 of the learned Civil Judge, Berhampur passed in E.P. ... ....
Keeping the above propositions and principles of law in perspective, the evidence needs to be examined to determine whether the Courts below committed any error in holding that the Will was not validly executed and attested. ... Proof of execution of document required by law to be attested - 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 ... ....
, that it was duly executed and attested by the person whom it purports to be executed and attested. ... , that it was duly executed and attested by the persons by whom it purports to be executed and attested. ... , that it was duly executed and attested by the persons by whom it purports to be executed and attested.” ... That apart, the 2nd defendant has stated that the testatrix, Adilakshmi executed a Will dated 15.10.1986 in his favour, considering that he was the person who was loo....
Proof of execution of document required by law to be attested. ... Before dealing with the aforesaid contention, this Court needs to notice the two other decisions cited across the Bar. Gopinathan Nair Maheswaran Nair v. ... It is in this context that this Court needs to take note of the provisions of Order VIII Rule 5 of the Code of Civil Procedure, which reads as under:- “5. ... After the testator affixed the signature, two witnesses attested the will. The first witness is Rasheed DW2 and the other is Punnoose DW3 who ....
Proof of execution of document required by law to be attested. ... Hence, this Court needs to consider the cumulative decisions of the Supreme Court cited across the bar to find out the principle governing the attestation of the will under Section 63 (c). 23. ... S.68 of the EVIDENCE ACT speaks of as to how a document required by law to be attested can be proved. ... Although S.63 of the SUCCESSION ACT requires that a Will has to be attested at least by two witnesses, S.68 of the EVIDENCE ACT provides that a document, wh....
Proof of execution of document required by law to be attested. ... S.68 of the EVIDENCE ACT speaks of as to how a document required by law to be attested can be proved. ... Hence, this Court needs to consider the cumulative decisions of the Supreme Court cited across the bar to find out the principle governing the attestation of the will under Section 63 (c). 23. ... Although S.63 of the SUCCESSION ACT requires that a Will has to be attested at least by two witnesses, S.68 of the EVIDENCE ACT provides that a document, wh....
In the light of what is stated above, this Court needs to consider the cumulative decisions of the Supreme Court cited across the bar. ... Proof of execution of document required by law to be attested. ... S.68 of the EVIDENCE ACT speaks of as to how a document required by law to be attested can be proved. ... Although S.63 of the SUCCESSION ACT requires that a Will has to be attested at least by two witnesses, S.68 of the EVIDENCE ACT provides that a document, which is required by law to be attested, s....
(a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will; (b) It is mandatory to get it attested
The admission of a party to an attested document of its execution by itself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested." ... 71. ... After that decision the definition of the word "attested" was inserted thus in S.3 of the Transfer of Property Act by amendment. ... ... 'attested', in relation to an instrument, means (and shall be deemed always to have meant) attested by two or more witnesses each of whom has seen the executant sign ....
His daughter, the defendant, had not attended to his needs nor did she care about the welfare of her father. This is admitted by the defendant as DW2, in her cross-examination. The defendant was gifted other properties by the father. ... Ext.A3 Will is attested by two witnesses-PW2 Velayudhan and one T.Balakrishnan. In terms of Section 68 of the Indian Evidence Act, at least one of the attesting witnesses is to be examined to prove due execution of the Will. ... From the evidence of PW2 it is evident that, the testator and the witnesses had gone together t....
I. The WILL must be attested by at least two witnesses. The following are requirements of valid attestation:
It is necessary for a Will to be attested and attested by two witnesses. These provisions are given under Section 63 of the Succession Act, 1925 read with Section 68 of the Evidence Act, 1872, which are reproduced below: The veracity of the Will which has been attested by the witnesses is again liable to be proved.
The statute further envisages a situation when both the attesting witnesses are not present at the same time. In these circumstances, the argument of learned counsel for the appellant that since the attesting witness Tarlochan Singh has admitted that he has signed first of all and thereafter the second attesting witness signed and in the last the testator signed, in the considered view of this court, is a valid attestation of the Will. It is not necessary that both the attesting witnesses must be present at one point of time. Still the Will can be validly executed and attested.#HL_....
(iv) Each of the said witnesses must have seen the testator signing of affixing his mark to the will and each of them should sign the will in presence of the testator. The will should be attested by two or more witnesses
The will is seen to be validly executed and attested.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
