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Importance of Attesting Witness in case of WILL : When the genuiness of the will is questioned, the due execution of the will has to be proved by the person who produces the document to make or establish any claim. To prove the execution of the will, the examination of at least one attesting witness is necessary. However, though a will, ordinarily must be proved, keeping in view the provisions of sec 63 of the succession act and sec 68 of the Act, in the event of the unavailability of the attesting witnesses on account of death or other similar circumstances being brought on record, the proof of execution of the will and attestion can be considered in the relaxed manner by having recourse to the exceptions provided under sec 69, 70 & 71 of the Act. Mere identifying the handwriting of the testator and signature of the scribe of the will , is of no legal consequences to proof of will and does not meet the stipulation under sec 69 of the act. To prove the will the attesting witness evidence is necessary, who can say the execution of will, mere identifying the signature of the testator and scribe of the will is not sufficient, witness must say in detail. The provision of 69 contemplates that, the handwriting of at least one attesting witness and the signature of the person executing the document is required to be identified and proved through the witnesses. The attesting witness plays the vital role to prove the execution of the will. If a document is alleged to be signeed by any person, the signature of the said person must be proved to be in his handwriting and for proving such ahandwriting, under secs 45 & 47 of Indian succession act, the opinion of experts and of persons acquinted with the handwriting of the persons concerned are made relevant. S 68 of the act deals with the proof of execution of the document reuired by law to be attested and it provides that, sucjh a document shall not be used as evidence until one attesting witness at least, has been called for the purpose of proving its execution . It is for the person who relies on such a document, to prodeuce the proof in terms of the said statutory profisions. Being a will it is necessary to also notice secs 59 & 63 of the Indian Succession Act, 1925 provides that, every person of sound mind, not being a minor, may dispose of his property by will S 63 stipulates that, the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the signature or the mark shall be made that it shall appear, that it was intended thereby to give effects to the writing as a will.. For details referILR 2009 Kar 992
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Category Civil Law, Other Articles by - adv. rajeev ( rajoo )