How to prove validity of will in the absence of witnesses

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A document by which a person (called the trestator) appoints executors to administer his estate after his death, and directs the manner in which it is to be distributed to the beneficiaries he specifies.

The process by which a testator's Will is made legally valid is known as Execution of Will. A Will is a legal document, signed in compliance with the various formalities covered by the legislation. It is the expression of the testator's wishes concerning how his/her property is to be distributed. It is the only way one can ensure his/her assets will be distributed according to his/her wishes after his/her death. It should be in written, however it may be either handwritten, or printed, or typed. The testator must sign at the end of the Will. It must be witnessed by at least two perons present at the time of signing by the testator. The said two persons ,who witnessed, must acknowledge they were present and must sign the Will as witnesses in presence of the testator. Making of a Will is the only remedy to be sure that asest of testator go to the persons he/she loves.

The essential terms:
· administrator - A person appointed by the Court to collect and distribute a deceased person's estate when the deceased died instate, his will did not appoint an executor, or the executor refuses to act.
· Beneficiary – 1. A person entitled to benefit from a trust. A beneficiary was formerly known as the cestui que trust. 2. One who benefuts from a will.
· Bequest[5] – A gift by will of property other than land.
· Codicil[6] – A document supplementary to a will.
· demonstrative legacy - A demonstrative legacy is payable from a specified fund.
· devise - A gift by will of real property; the beneficiary is called the devisee.
· Distribution – The process of hand ing over to the beneficiaries their entitlements under a deceased person's will or on his intestacy. succession
· executor- A person appointed by a will to administer the testator's estate.
· Inheritance – Property that a beneficiary receives from the estate of a deceased person.
· Intestacy- The state in which a person dies without having made a will disposing of all his property.
· Intestate - A person who did not execute a will as to his all property during his life time.
· legacy - A gift of personal property effected by will. Specific legacy is a particular identifiable object.
· legatee - The person to whom a legacy is given.
· Probate - Probate is an acceptance or approval by the court of law that how testator's assets are to be settled.
· testate – Having left, at one's death, a legally valid will.
· testator - A person who makes a will.

General Essential Requirements for Making of a WIll:
-A person, being major, and of sound mind can execute a Will.

- He/she can dispose of all his/her property or any part of property under a Will.

- The Will must a last Wil and testament.

- A declaration should be given by the testator that he/she revokes all earlier Wills if any.

- However, in case of a subsequent Will is totally inconsistent and void with an earlier Will, the earlier Will can be considered by implecation as if it is revoked.

- A Will should be made by the testator who has having sound mind in state.

- The testator should execute the Will in presence of at least two witnesses.

- The maker of the Will should sign or put his /her mark at the end of the Will. If the testator does not signor put his/her mark at the end of the Will, the text following the singature or mark usually be ignored or the entire Will may be invalidated. Therefore, care should be taken to avoid defeat of intention of the testator.

- Normally, non registration of a Will does not lead to any inference against the genuineness of a Will.

- A Will may be revoked by the execution of a new Will by the testator.

- Yet, in case of muslim testator, Muslim can bequeath one 1/3rd of his property.

- The heirs of a Muslim can consent to bequeath more than 1/3rd of estate of testator.

- A Muslim testator can cancell any legacy or change his Will.

- It is to be remembered that Muslim Personal Law governs muslim testator to make a Will.

- Muslim may make a Will either orally or in written. Yet, writtten Will is desirable.

- In case of a written Will, as to Muslim, such Will need not be attested. That too, the provisions of Indian Succession Act do not usually apply to them unless specifically mentioned in the said Act.

-At this juncture, it would be more useful to look into Section 68 of the Indian Evidence Act, 1872 and also Section 63 of the Indian Succession Act, 1925. Section 68 of the Indian Evidence Act, 1872 reads as follows;

"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 to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied."

-From the cursory look of the provisions of the said Section, the Court can easily cull out the following aspects;

a) If a document is required by law to be attested, the same should be proved by way of examining one attesting witness and otherwise the same cannot be used as evidence.

b) If a document is registered under the provisions of the Indian Registration Act, 1908 (XVI of 1908) and its execution is specifically denied, one attesting witness must be examined.

-Section 63 of the Indian Succession Act (Act XXXIX of 1925) reads as follows;

"Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-

a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

-The provision of the said Section can be vivisected as follows; a) In every Will, the concerned testator should sign or affix his mark or it shall be signed by some other person in his presence and that too by his direction.

b) The signature or mark of the testator or the signature of the person signing for him should appear to give effect to the writing as a Will.

c) The Will concerned should be attested by two or more witnesses. d) Each witness must see the sign or mark of the testator. e) Each witness should sign in the presence of the testator. f) No particular form of attestation is necessary.

Advocate Siddhant Sharma LawRato