Attesting Witness to Appear before the Court for proving the Will

Judgement on the will

A Will is basically a legal declaration of the intention of the person regarding the enjoyment of his properties after his death. According to law, a Will is required to be signed by the testator (the person who has made the Will) or any person in this behalf authorized by him and has to attest by at least two witnesses in the presence of the person who has made the Will and in the presence of each other. Those who attest must have also witnessed the testator putting his signatures or affixing his mark.

The Hon’ble Supreme Court in the Landmark Judgement of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria & Others had held that besides the signature of testator and attesting of Will by witnesses, it is also required that at least one of the two attesting witness should have appeared before the Court and subjected to the due process of Court for proving due execution of the Will.

Thus before a Will can be used as credible evidence in the Court of Law, attesting witness who is alive and capable of giving evidence, has to be necessarily examined before the document required by law to be attested can be used in evidence.

The Apex Court further held that if the witness appearing before the court is only able to prove the attestation of will by him but fails to prove the attestation by the other witness than he has not been able to prove the validity and legality of the Will and the other witness will also have to be produced in the court.

This Judgment is remarkable in the sense that it seeks to reaffirm the well-established law in regard to the Wills. Henceforth not only statutory requirements for proving the Will are to be satisfied but it has to be established beyond any reasonable doubt that it is free from any suspicious circumstances before it can be admitted as evidence in the Court which can be done only if the attesting witnesses appears before the court and opportunity can be afforded to the other party to cross-examine him.

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