Execution and attestation of Will
A Will, as per Section 63 of the Indian Succession Act, 1925 (ISA),
requires to be attested by two or more witnesses. Each of the witnesses
must have either seen the testator sign or affix his mark to the Will,
or give directions to someone to affix his signature in his presence, or
get personal acknowledgement by the testator of such testator’s assent
to the Will. Above all, each of the witnesses to the ‘Will’ should have
signed the ‘Will’ in the presence of the testator.
Normally the propounder of the Will must show by cogent (and
satisfactory) evidence that the ‘Will’ which the propounder relies on
was signed by the testator, and that the testator was in sound disposing
mind when he signed the ‘Will’, and that he understood the nature and
effect of the disposition, and that he placed his signature on the Will
of his own freewill (and accord), and that too without any force,
coercion or undue influence of whatsoever nature.
Initial burden of proof lies on the propounder
The initial burden of proof in each case lies upon the propounder of the
Will. The propounder has to discharge it by satisfying the conscience of
the court that the instrument propounded is the last and final Will of
the testator and it was executed by the testator without any force,
coercion or undue influence at all. But the burden of proving any sort
of such fraud played upon the testator in obtaining the execution of the
Will is on the other party (the respondent) who alleges it.
The propounder of will must initially prove that the Will was signed by
the testator in a sound and disposing state of mind, duly understanding
the nature and effect of disposition, and he put his signature on the
document of his own free will.
An attesting witness must be examined
The Section 68 of the IEA necessitates that a document, such as a Will,
which is required by law to be attested shall not be used as evidence,
until and unless, at least one attesting witness, if he be alive and
capable of giving evidence, has been called in for the purpose of
proving its execution.
A registered document, other than a Will, need not be proved by calling
a witness, if it is a registered one. That relaxation is not applicable
to a registered Will.
When the attesting witness is examined the document required by law to
be attested can be used as evidence.
Presumption of 30 years old Will as duly executed/attested
The Section 90 of the IEA imposes that where any document, purporting or
proved to be 30 years old, is produced from any custody which the court
considers proper, the court may presume that the signature and every
other part of such document, which purports to be in the handwriting of
any particular person, is in that person’s handwriting, and, in case of
a document executed and attested, that it was duly executed and attested
by the persons by whom it purports to be executed and attested.
In other words, it means that a thirty years old Will would be presumed
to be truly executed and attested till someone disproves it by rebuttal
Propounder must remove the suspicion
Where the execution of a ‘Will’ is accompanied by suspicious
circumstances, the propounder has to explain such circumstances and
remove the suspicion of the court in a way satisfying its conscience.
The presence of such suspicious circumstances makes the initial onus of
proof heavier on the propounder of the ‘Will’. In cases where the
circumstances surrounding the execution of the ‘Will’ are exciting to
the court, the propounder must remove all legitimate suspicion before
the document can be accepted as duly created ‘Will’ of the testator.
When the Will is allegedly shrouded in suspicion, its proof ceases to be
a simple matter existing between the plaintiff and defendant but it
becomes a question of the conscience of the court. Then the propounder
of the Will has to offer cogent and convincing explanation of suspicious
circumstances surrounding the making of Will so as to satisfy that Will
was duly executed by the testator. If a Will is challenged as shrouded
in suspicious circumstances, all legitimate doubts as to the suspicious
circumstances have to be removed by cogent, satisfactory and sufficient
If the evidence adduced in support of the Will is disinterested,
satisfactory and sufficient to prove the sound and disposing state of
testator\’s mind and his signature as required by law, the court would
be justified in making a finding in favour of the propounder.
Presumption of 30 years old documents not apply to a Will
In Bharpur Singh v. Shamsher [(2009) 3 SCC 687 ], keeping in view of
the peculiar facts and circumstances of the case, it was held by the
Supreme Court that, a presumption regarding documents of 30 years old
does not apply to a ‘Will’. It was held in the case that a ‘Will’ has to
be proved in terms of Section 63 (c) of the ISA (which states about
attestation) read with Section 68 of the IEA (which states about calling
an attesting witness to the court for proving a will).
This decision was made by considering the peculiar facts and
circumstances of the case alone and therefore does not apply to other
cases in general.
What are the suspicious circumstances in a Will?
The suspicious circumstances surrounding the execution of the Will
enlisted in the above said Bharpur Singh v. Shamsher case [(2009) 3 SCC
687] are as follows:
The signature of the testator may be very shaky and doubtful or not
appear to be his usual signature
The condition of the testator\’s mind may be very feeble and
debilitated at the relevant time
The disposition may be unnatural, improbable or unfair in the light
of relevant circumstances like exclusion of or absence of adequate
provisions for the natural heirs without any reason
The dispositions may not appear to be the result of the testator\’s
free will and mind
The propounder takes a prominent part in the execution of the Will
The testator used to sign blank papers
The Will did not see the light of the day for long
Incorrect recitals of essential facts
The list is however an indicative, but not an exclusive, one.
Suspicion free Will of 30 years old needs no further proof
Recently the High Court of Kerala [in a Regular Second Appeal in
Narambrath Ramadasan & Others v N Leela & Others (2019 (5) KHC
964)] says that in proving the attestation of a Will the presumption
under Section 90 of the IEA will extend to all requirements of proof
under Section 68 of the IEA or Section 63 of ISA, if the Will is free
from suspicion on the face of it and is produced from proper custody,.
The Will was considered proved because there was no rebuttal evidence.
The Will in question was a registered one as well.
Normally, a Will cannot be read in evidence unless one of the attesting
witnesses alive is summoned to the court and the execution and
attestation are proved. But in the case of a Will of more than thirty
years it may not always be possible to comply with this requirement.
In the second regular appeal in this case, the High Court examined
whether the requirement under Section 68 of the Evidence Act is to be
complied with in proving an ancient Will of 30 years old which was
brought up from proper custody. It also examine whether it is
permissible to draw presumption under Section 90 of IEA in proving its
execution and in complying with the requirement under Section 63 of ISA.
It further examined whether Section 90 of IEA will prevail over the
requirement under the Section 68 of IEA, as well. These were the
substantial questions in the case.
The High Court held, “None of the sections brought under Chapter V
commencing from Sections 61 to 90A will have any overriding effect over
any other provision therein and as such the question whether Section 90
of the Evidence Act would prevail over Section 68 of the Act would not
arise. But, the expression \’proved\’ as defined under Section 3 of the
Act should be understood with the tools provided under Chapter V of the
Act in proof of execution of a document and its contents. When a
document is proved by any of the provisions under that Chapter, there is
no necessity for insisting further proof or compliance of mandate under
any other provisions therein. When a Will or Codicil is proved under
Section 90 of the Evidence Act, there is no necessity to insist for
further proof or the compliance of mandate under Section 68 of the Act”.
The High Court further states, “.….in the matter of an ancient Will
or Codicil produced from proper custody, the presumption available under
Section 90 of the Evidence Act would extend to all the requirements to
be complied with under Section 63 of the Indian Succession Act. More
specifically, there would be a presumption regarding compliance of
mandate under clauses (a) to (c) to Section 63 of the Indian Succession
Act in the matter of a Will or Codicil that the signature or mark was
affixed by the testator or any other person on his behalf under his
direction and in his presence and that attestation was done by two
witnesses as mandated therein, besides the presumption that the testator
or the person who had signed on his behalf by his signature or mark had
intended to effectuate the writing as a Will. Unless the presumption is
rebutted, everything mandated under Section 63 of the Indian Succession
Act would stand established by the operation of the presumption
available under Section 90 of the Evidence Act and the initial burden
lies on the person who claims the Will as genuine would stand
discharged. But at the same time, a mere production of a document of 30
years old from a proper custody would not itself permit the court to
draw a presumption mechanically”.
The High Court also warns that the courts must exercise extreme caution
and utmost circumspection in ensuring that the Will is wholly free from
suspicion and is brought from proper custody while setting up the
presumption under Section 90 of IEA.
When a Will is not surrounded in suspicious circumstances the
presumption of Section 90 of IEA would apply to it and there is no need
for proving it by bringing the attesting witness to the court for taking
testimony, so long as the presumption remains not rebutted.
If the execution of the Will is dubiously shrouded in suspicious
circumstances the presumption under Section 90 of the IEA would not
squarely apply to it and then the Will would have to be proved as
prescribed under Section 63 of IEA.