It is possible to obtain probate of a Will even if the attesting witnesses are dead
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Can we change the witnesses in the Will after the registration process is complete? Is it needed that the witnesses should be alive during the probate process?
It is possible to change a Will at any time during the lifetime of the testator (the person making a Will), provided that the testator is of sound mind. However, it is not possible to change the witnesses of a Will after the registration process, since the witness is one who has witnessed the signature of the testator on the Will and has affixed his/her signature as a witness to the Will (as a witness to the signature of the testator).
Under section 63 of the Indian Succession Act, 1925, a Will is required to be attested by two or more witnesses in the presence of the testator, each of whom have seen the testator sign or affix his mark to the Will or have received personal acknowledgement from the testator that he himself has signed the Will. Subsequently, at the time of obtaining probate, the attesting witnesses, or one of them is required to depose to this fact. This is because as per section 68 of the Indian Evidence Act, 1872, 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.
Therefore, on a conjoint reading of section 63 of the Indian Succession Act, 1925, and section 68 of the Indian Evidence Act, 1872, at least one of the attesting witnesses will need to depose for the purpose of proving due execution of a Will.
In the event that no such attesting witness is alive or can be found, then as per section 69 of the Indian Evidence Act, 1872, the Will has to be proved by proving the signature of the testator as well as that of at least one attesting witnesses.
Thus, while it is possible to obtain probate of a Will even if the attesting witnesses are dead, it may be a slightly more cumbersome procedure and a longer process.
My sister wants to claim her property share. Currently all properties are in my grandmother’s name and have not been divided between my father and my uncle. We are two brothers and one sister, and my uncle has only two sons. So, can my grandmother’s property be divided equally between all five of us, or will it get divided between my father and uncle first and then between me, my brothers and my sister and the two cousins?
I have assumed that your grandmother is Hindu and accordingly Hindu Law would apply.
I have assumed that the property is not a Hindu Undivided Family ( HUF) property, since you have mentioned that the property stands in the name of your grandmother. If the property in question is owned exclusively by your grandmother (either being her self-acquired property or inherited absolutely by her with rights to the disposition thereof), then your grandmother has the right to decide upon whom her property will devolve on her death. Your sister would be entitled to a share in the property on the demise of your grandmother, if your grandmother has named her as a legatee or beneficiary under the Will executed by your grandmother in respect of this property; or in the case of intestate succession (where your grandmother dies without executing a Will) she will inherit a share in the property only if your father has predeceased your grandmother. In that case, the share of your father will devolve upon his legal heirs (which would include you and your sister).
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.
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