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Probate

(Querist) 21 August 2014 This query is : Resolved 
Hello experts,
I have moved for probate of my late father's registered Will. At this stage, the two attesting witnesses who are both based in Delhi have been summoned and served. It would be important to mention that both attesting witnesses have taken part in some other court cases wherein the Will has been given as evidence.
Now one of the attesting witnesses has given an address in Pune and is seeking huge amount for coming . While the other has been served but isn't coming to tender his evidence.
Please suggest remedy in this case.
Mohan R (Querist) 21 August 2014
To further clarify, the two witnesses have residence at New Delhi and Noida respectively.
Please advise in detail.
Thank you.
Rajendra K Goyal (Expert) 22 August 2014
If after receiving the summons, the witness is not appearing, prey the court to issue warrant.
malipeddi jaggarao (Expert) 22 August 2014
Your father has kept trust in his well-wishers and took their witness to his Will. You should respect them and convince them to fulfil the wish of your father. If they claim reasonable expenses to attend this work, you should not complain. Even if the court issues summons, if they do not cooperate, the purpose of calling them will be defeated. Be tactful in handling the issues.
ajay sethi (Expert) 22 August 2014
you need to examine one AW atleast to prove your father will . if none of witness turn up court wont grant you probate . better pay
Raj Kumar Makkad (Expert) 22 August 2014
I do agree with the experts.
Mohan R (Querist) 23 August 2014
While only one attesting witness is required, the other has positioned himself far away from Delhi through a letter as an excuse even though he belongs to Delhi, in all probality would have a voter card from Delhi too. Defraying reasonable expenses under the circumstances is justified but when this AW asks for many many many thousands for one day travel etc, how far is this tenable. Further they have acted upon the Will on oath in courts before, so isn't execution and attestation proved thereby. Since its a high end property, the motive is to misappropriate the whole property. There is otherwise no one challenging the Will as of now amongst the LR's. Please advise. If the attesting witness/witnesses choose to be hostile under the given circumstances, what is the remedy.??? Your valuable advise please.
ajay sethi (Expert) 23 August 2014
no in probate petition one AW has to be examined . unless you examine one AW will will not be proved . if AW do not turn up to give evidence you will lose the case . no probate would be granted
Mohan R (Querist) 23 August 2014
I agree atleast one AW is to be examined and he has to tender his evidence. But suppose he is unwilling to come even though his signatures are on the Will and he has taken part in other proceedings of the movable/immovable assets of the testator wherein the Will formed a part of the plaint/petition/appeal, what is the legal remedy to make him answerable for his actions.
Raj Kumar Makkad (Expert) 24 August 2014
Such witness should be got summonned in the witness box through the notice from the court so that he may be compelled to make his statement thereon.
Mohan R (Querist) 25 August 2014
Allright, thanks experts.
Raj Kumar Makkad (Expert) 25 August 2014
You are most welcome Mohan.
T. Kalaiselvan, Advocate (Expert) 27 August 2014
Your query has been rightly addressed by experts, if you feel that the same Will has been proved in another court by same AW, try your luck to produce that court's deposition and a certified copy of that Will as well as the probate order copy through court process.


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