How to Prove a Will When Attesting Witnesses Are Deceased: Hon'ble Supreme Court's Interpretation

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Key Takeaways from the Judgment:

  1. Presumption Under Section 90 of the Evidence Act Not Applicable to Wills

    • A document older than 30 years may enjoy a presumption of authenticity under Section 90 of the Indian Evidence Act, 1872.
    • However, this presumption does not apply to wills, which must be proved per Section 63(c) of the Indian Succession Act, 1925, and Section 68 of the Evidence Act.

  2. Alternative Provisions for Proof When Witnesses Are Unavailable

    • If both attesting witnesses are deceased or unavailable, the will’s validity can be established under Sections 69 and 71 of the Evidence Act.
    • Section 69 allows proof through other witnesses who can verify the handwriting of the testator and an attesting witness.
    • Section 71 permits proof through other evidence if an attesting witness denies or does not recollect attesting the will.

  3. Application in the Present Case

    • The testator's sons testified about the signing of the will, and another witness confirmed the signatures.
    • The trial court relied on supporting evidence, including a partition deed that acknowledged the will’s existence.
    • The Supreme Court upheld the High Court’s ruling, confirming that the will was duly executed.

Conclusion

This ruling clarifies that even if attesting witnesses are unavailable, a will can still be proved through alternative means. The judgment reinforces that strict formalities under the Indian Succession Act must be followed while allowing flexibility when witnesses are deceased.

This case is significant for estate disputes, highlighting the evidentiary safeguards available for proving a will.

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