Legal Aspects Concerning the Proving of a ‘Will’ : Section 63 of the Indian Succession Act, 1925 Read with Section 68 of the Indian Evidence Act, 1872

A ‘Will’ is an instrument by which a person makes a disposition of his property to take effect after his death and which is in its own nature ambulatory and revocable during his life. A ‘Will’ is an obstruction in the line of succession. Section 63 of the Indian Succession Act, 1925 declares the substantive law regarding the execution of an unprivileged ‘Will’ and it mandates that the testator has to sign or affix his mark in the presence of two or more attesting witnesses, it being not necessary that the two attesting witnesses should simultaneously be present to witness the execution of the ‘Will’. On a combined reading of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, it is clear that a person propounding the ‘Will’ must prove that the ‘Will’ was duly and validly executed, and this cannot be done by simply proving that the signature on the ‘Will’ is that of the testator but by also proving that the attestations made on the ‘Will’ are in the manner (and form) as required by clause (c) of Section 63 of the Indian Succession Act, 1925. Section 71 of the Indian Evidence Act, 1872 provides that if the attesting witness denies or does not recollect the execution of the document (‘Will’), its execution may be proved by other evidence. The period of three years (Article 137 of the Limitation Act, 1963) for institution of a petition for grant of probate commences from the point in time when the right to apply for probate accrues to the petitioner. As per Section 212(2) of the Indian Succession Act, 1925, a Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi is not bound to apply for letters of administration (probate). It is optional (and not mandatory) for the above stated categories of persons to seek probate of ‘Will’