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Ankur   13 May 2018

Digital will vs registered will

My father did registered will in 2005 witneesed by my lawyer and his friend. Now we do not have faith on them. So in that case, in future, can they deny to accept fact if there would be requirement of probating the will. What should my father do now. 

Someone told me for digital will  that this is more authenticated then registered will. I need guidance in this connection that which will be more authenticate in case of probating the will in future in front of court.



Learning

 5 Replies

Kumar Doab (FIN)     13 May 2018

Go thru;

The Indian Information Technology Act, 2000;

(4) Nothing in this Act shall apply to;

(d) a will as defined in clause (h) of section 2 of the Indian Succession Act, 1925 including any other testamentary disposition by whatever name called;

https://www.dot.gov.in/sites/default/files/itbill2000_0.pdf

Check with the person once again on digital WILL, in India.

Kumar Doab (FIN)     13 May 2018

The WILL was registered in India?

The registered WILL is not easily set aside atleast on counts of authenticity.

If a Lawyer cannot be trusted for WILL then must not be trusted for anything.

You may suggest settlement deed with life rights.

Approach your own another very able senior LOCAL counsel of unshakable repute and integrity specializing in testamentary/civil matters and having successful track record ….. and worth his/her salt …and discuss in person and even with seasoned PIP and proceed in best of your interest.. ASAP.

For such counsels; Check at LOCAL  O/o Tehsildar ( Registering Authority for WILL), Civil Courts, HC,SC……..

Kumar Doab (FIN)     13 May 2018

Carefully go thru;

Indian evidence Act 

63. Secondary evidence.—Secondary evidence means and includes—

68. Proof of execution of document required by law to be attested.—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: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]

https://indiankanoon.org/doc/1953529/

Kumar Doab (FIN)     13 May 2018

Slowly and carefully go thru;

Punjab-Haryana High Court

Jaswinder Singh And Ors. vs Kartar Singh And Ors

 

29.

This Court had the occasion to examine a situation wherein one of the attesting witnesses had turned hostile in Gurdev Singh and Ors. v. Smt. Shanti, 1989 C.C.C. 40, and yet it arrived at the conclusion that merely because an attesting witness or some of them were hostile or unreliable, the Court would not declare a will invalid if on the examination of the totality of the circumstances, a contrary conclusion could be arrived at. Relevant observations made in the aforesaid judgment are being extracted hereunder:-

"In order to establish the validity of a will, it has no doubt to be proved that it was attested by at least two witnesses, but it must, at the same time also be observed that it is not the intention of the law that an attesting witness be permitted to hold the propounder of a will to ransom, as it were by treating his mere denial of attestation of the will, by itself, as negation of due execution of the will. As held by the High Court of Calcutta in Mahindra Nath Ganouli v. Durga Charan Ganauli, 1959 I.L.R.(l) Calcutta 471, where the attesting witnesses or some of them prove hostile or unreliable, the Probate Court is not powerless to declare in favour of the will and if from the other evidence on record and the circumstances taken as a whole, it is in a position to hold that the will was duly executed and attested, it will pronounce in favour of its validity.

https://indiankanoon.org/doc/611125/

 

GURDEV SINGH AND ONOTHER V. SHANTI AND OTHERS

https://www.casemine.com/judgement/in/5767b112e691cb22da6d2568#

Punjab-Haryana High Court

Lila Dhar vs Smt. Badho And Anr.

19. In order to establish the validity of a will, it has ,no doubt to be proved that it was attested by at least two witnesses, but it must, at the same time also be observed that it is not the intention of the law that an attesting witness be permitted to hold the propounder of a will to ransom, as it were, by treating his mere denial of attestation of the will, by itself, as negation of due execution of the Will. Where the attesting witness or some of them prove hostile or unreliable, the Court is not powerless to declare in favour of the will and if from the other evidence on record and the circumstances taken as a whole, it is in a position to hold the will was duly executed and attested, it will pronounce in favour of its validity. If any judgment is required on the point, a reference can be had to Gurdev Singh v. Smt. Shanti, 1988, S.L.J. 885.

https://indiankanoon.org/doc/1286255/

 

You should be clear.

Kumar Doab (FIN)     13 May 2018

Different person may have different  expectations from lawyers and different issues ;

https://www.lawyersclubindia.com/forum/details.asp?mod_id=154374&offset=1


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