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Proving a Will

If any genuine reasonable or bona fide doubt is created regarding the execution of the will or the mental faculty of the testator a duty is cast upon the propounder and the beneficiary of the will to remove the suspicious circumstances by placing satisfactory material on record.

Circumstances raising suspicion

Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. Shaky signatures, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and, therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.Sh. Harbans Singh vs Hardayal Singh1)

In the case of Jaswant Kaur vs Amrit Kaur2) it was held that where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience. Then, the true question which arises for consideration is, whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction, unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.

Burden of proof on the propounder

The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily, when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, the courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

Trustworthy and unimpeachable evidence should be produced

A will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the creditability of witnesses and disengage the truth from falsehood, the court is not confined only to their testimony and demeanor. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would also be open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party. 3)

In the case of Indu Bala vs Manindra Chandra4), it has been held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by section 63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him is also a circumstance to be taken into account. The propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances, the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations.

Proof of mathematical certainty not required

Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of will, one cannot insist on proof with mathematical certainty. Unlike other documents, the will speaks from the death of the testator and, therefore, the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.H Venkatachaia Iyengar vs BN Thimmajamma5)

Manner of proving execution of document

Section 68 of the Indian Evidence Act postulates the mode and manner in which proof of execution of document is required by law to be attested. It, in unequivocal terms, states that execution of will must be proved at least by one attesting witness, if an attesting witness is alive; subject to the process of the court and capable of giving evidence.Niranjan Umeshchandra Joshi vs Mrudula Jyoti Rao6)

Examination of at least one attesting witness

Although section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution, if such witness is alive and capable of giving evidence and subject to the process of the court.

In a way, section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with.

Where one attesting witness examined to prove the will under section 68 of the Evidence Act fails to prove the due execution of the will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness, there will be deficiency in meeting the mandatory requirements of section 68 of the Evidence Act.

Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances, the party seeking to obtain probate and/or letters of administration with a copy of the will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.Anil Kak vs Kumari Sharada Raje7)

In the decision reported in George vs Varkey8), it was held as follows

To be a valid will, apart from genuineness of the signature and testamentary capacity, it should also be proved that section 63 © of the Indian Succession Act, 1925, is complied with. Attestation by two witnesses is compulsory. What is necessary is to call for the purpose of proving the execution on of the attesting witnesses, if he is alive. So the obligation is only to call at least one of the attesting witnesses, if he is alive, to the court for proving the will. But even if he denies the will, if by other evidence it is proved that there is proper attestation, the will can be accepted. The court is free to believe or disbelieve him after analyzing the entire evidence. The deposition of attesting witness is also to be scrutinized by the court like deposition of any other witness. Even if the attesting witness examined denies proper attestation, it is for the court to decide whether the will was duly attested considering the entire evidence. Appraisal of evidence is the duty of the court.”

About the Author

Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on Law.

1996 113 PLR 544
1977 1 SCR 925
Katyan Singh vs Smt. Chhoti, AIR 1990 SC 397
1982 1 SCR 1188
AIR 1959 SC 443
AIR 2007 SC 614
2008 6 SCALE 597
2004 (1) KLT 21

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