The Bombay high court (HC) has recently granted probate of an un-attested will, observing that the testamentary court cannot allow the wishes of a deceased to be defeated or thwarted due to some technicality.
The single judge bench of justice BP Colabawalla was hearing a testamentary petition filed by a city resident seeking probate of a will left behind by his deceased relative.
Probate is a court process by which a will is proved valid or invalid.
On October 14 last year, the HC had struck down a caveat filed with respect to the will, and directed its testamentary department to grant for probate of the will if it was otherwise found in order.
However, on December 20, HC’s testamentary registrar raised an objection as to the validity of the will on the grounds that it was signed only by the testator — the deceased woman, and not by two attesting witnesses, as required by section 63(c) of the Indian Succession Act, 1925.
The matter was then referred back to the testamentary court where advocate Shyam Kapadia, who represented the petitioner, submitted that the objection raised by the testamentary registrar was a highly technical one and urged the court to not allow the will and last wishes of the deceased to be defeated on a hyper technical ground.
Kapadia pointed out that the will was executed on November 11, 2008 and was registered with the joint sub-registrar, Mumbai City Division 1, on the same day in the presence of both the attesting witnesses. He further pointed out that both the witnesses had filed affidavits stating that they were present in the office of the joint sub-registrar and witnessed the testator signing the will and that both of them have signed registration page of the will.
Justice Colabawalla accepted the contention and said the law on the subject is quite clear that when a court deals with a will, the court must approach it as a court of conscience. “It is for the court to be satisfied that the document put forward is the last will and testament of the deceased, and if the court finds that the wishes of the deceased are likely to be defeated or thwarted merely by reason of some technicality, the court, as a court of conscience, would not permit such things to happen.”
The bench further said the objection raised by the testamentary registrar was a technical one, considering that the attesting witnesses had filed affidavits stating that they were very much present at the time when the deceased executed the will.
“I therefore find that the objection taken by the testamentary department that the signatures of the attesting witnesses do not appear on the will and hence (the will) is invalid, is a hyper technical one,” the judge added and directed the department to grant probate.