How to prove a will?
Dr. MPS RAMANI Ph.D.[Tech.]
(Querist) 29 March 2011
This query is : Resolved
A person has a will from his mother bequeathing her entire property to him, appointing him as executor and the will was registered. In the place where the property is situated no probate is required. The property is in adverse possession of another person. If no probate is required, how to take legal action to get possession of the property? In other words how to prove a will without a probate?
Is there stamp duty to get a probate?
R.Ramachandran
(Expert) 29 March 2011
Please indicate who is the 'other person' who has the possession of the property. Is that person a relative and if so how is he related.
Dr. MPS RAMANI Ph.D.[Tech.]
(Querist) 29 March 2011
The other person is brother of the legatee. But his mother has willed it in favour of legatee, because the legatee had paid the entire money to purchase land and to construct the house. She has stated this reason in the will as well.
R.Ramachandran
(Expert) 29 March 2011
Then the question comes as to in which year the WILL became operational?
Where is the property situate?
adv. rajeev ( rajoo )
(Expert) 29 March 2011
On the basis of the will he has to file a suit for possession against " other person". In this case he will have to prove his will by leading the evidences of the wittnesses and scribe of the will.
Dr. MPS RAMANI Ph.D.[Tech.]
(Querist) 30 March 2011
To Advocate Rajoo:
Thank you Sir for the advice.
To Expert Mr. R. Ramachandran.
The Testator died in 2005. The property is situated in Surat, Gujarat.
R.Ramachandran
(Expert) 30 March 2011
Did you take action to get the property mutated in your name immediately after the Testator died in 2005 and if so with what result. Whether the property is already mutated in your name but only the possession is with your brother.
If the possession only is with your brother, then as advised by Mr. Rajeev (aka Rajoo) file a suit for possession.
Lawyer SALEEMA KABEER
(Expert) 31 May 2014
Adverse possession can be claimed only by a stranger not by family member. Therefore, straight a way you can claim title over the property on the strength of will executed in your favour. If the will is disputed, then you have to file declaration suit before the civil court to declare your absolute right over the said property wherein you have to prove the will.
The will has to be proved as per section 68 of the Evidence Act. According to the said Section, a document required by law to be attested 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 an evidence.
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.
In a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.
Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This Section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence.
