- Statutory Rescue: Section 68 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 69 Indian Evidence Act) saves genuine Wills when both witnesses have died.
- Two-Fold Burden of Proof: You must prove two things: the handwriting of at least one attesting witness and the genuine signature of the testator.
- Hostile Witness Protection: Section 70 BSA (formerly Section 71 Evidence Act) allows you to prove the Will through other evidence if a witness turns hostile.
- No Automatic Invalidation: A Will does not become invalid simply because the witnesses died before the testator or before probate proceedings started.
- Handwriting Evidence: The court accepts testimony from relatives, employers, bank officials, or forensic experts who know the handwriting.
- Golden Rule for Will Makers: Always choose attesting witnesses who are 15 to 20 years younger than you to prevent evidentiary hurdles.
Consider a very common Indian scenario. An 80-year-old grandfather writes his Will in 2010. He asks two close lifelong friends of his own age to sign as attesting witnesses. Sixteen years later, the grandfather passes away at age 96. By that time, both of his elderly friends have also died.
When the family opens the Will and files for probate, opposing relatives raise a sharp objection: "Both witnesses are dead! There is no one to testify in court. This Will cannot be proved and must be rejected!"
Does the death of both attesting witnesses make a Will invalid? The clear legal answer under Indian law is no. The Indian Parliament and the Supreme Court have created a strong statutory safety net to protect authentic Wills. In this guide, we explain how Section 68 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), formerly Section 69 of the Indian Evidence Act, 1872 (IEA), rescues your inheritance. To check your family inheritance shares right now, visit our free succession calculator or review our will drafting checklist.
1. Can You Prove a Will When Both Attesting Witnesses Are Dead?
Yes. A Will does not die with its attesting witnesses. Under Section 63 of the Indian Succession Act, 1925, a valid Will requires at least two attesting witnesses who saw the testator sign. But the law does not require those witnesses to outlive the testator.
Indian succession law recognizes that decades may pass between the day a Will is signed and the day it is presented to a court. Old age, illness, or accidents often claim the lives of witnesses first.
When both attesting witnesses have passed away, the standard method of proof under Section 67 BSA (formerly Section 68 Evidence Act) cannot be used. The court cannot call a deceased person to the witness box. In such cases, Section 68 BSA (formerly Section 69 Evidence Act) steps in. It provides an alternative legal path to prove the execution of the Will.
If no such attesting witness can be found, or if all attesting witnesses are dead, it must be proved that the attestation of at least one attesting witness is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
2. Statutory Rescue Under Section 68 BSA vs Section 69 IEA
On July 1, 2024, the Bharatiya Sakshya Adhiniyam, 2023 replaced the old Indian Evidence Act, 1872. While the section numbers changed, the core legal rule remains identical. Former Section 69 of the Evidence Act is now Section 68 of the BSA.
Under Section 68 BSA, the person presenting the Will (the propounder) must satisfy a strict two-fold test:
- First Requirement: Prove that the signature on the Will belongs to the testator. You must establish that the Will maker signed the document with free will and sound mind.
- Second Requirement: Prove that the signature of at least one attesting witness is in their genuine handwriting. Proving only the testator signature is not enough. You must also prove the witness signature.
How do you prove handwriting when the person is dead? Under Section 45 and Section 47 of the Evidence Act (now Section 39 and Section 41 BSA), you can call any person who is familiar with their handwriting. This includes a son, daughter, spouse, business partner, or bank manager who saw them sign papers regularly. You can also engage a forensic handwriting expert.
3. What If an Attesting Witness Turns Hostile Under Section 70 BSA?
Another common court dispute happens when an attesting witness is alive, but turns hostile. In many Indian family disputes, a jealous sibling or rival heir bribes an attesting witness. When summoned to court, the witness lies and says: "I never saw the deceased sign this Will" or "My signature was taken on a blank paper."
Can one dishonest witness destroy the last wishes of a deceased parent? Indian law says no. This situation is covered by Section 70 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 71 of the Indian Evidence Act, 1872).
If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
Under Section 70 BSA, the court will not throw out a genuine Will just because a witness turns hostile or claims memory loss. The propounder can bring other credible evidence. This includes the drafting advocate, the scribe who typed the Will, the sub-registrar who registered the document, or doctors who certified mental fitness.
At least one living attesting witness must be called to testify that the testator signed the Will in their presence.
Produce death certificates and prove two things: testator signature plus handwriting of at least one witness.
Witness denies execution or lies in court. Prove the Will through drafting lawyer, registrar, or doctors.
4. Comparison: 1 Witness Alive vs Both Dead vs Hostile Witness
The table below summarizes the exact legal requirements and burdens of proof across all three witness situations:
| Witness Situation | Governing Statutory Section | Primary Legal Requirement | Court Burden of Proof |
|---|---|---|---|
| At Least One Witness Alive | Section 67 BSA (Sec 68 IEA) | Examine at least one attesting witness in court | Witness confirms seeing testator sign with free will |
| Both Witnesses Deceased | Section 68 BSA (Sec 69 IEA) | Submit death certificates of both witnesses | Prove testator signature and one witness handwriting |
| Witness Cannot Be Found | Section 68 BSA (Sec 69 IEA) | Show diligent court summons and police search report | Prove witness handwriting through known sample papers |
| Witness Turns Hostile | Section 70 BSA (Sec 71 IEA) | Cross-examine hostile witness and seek court leave | Prove execution through drafting advocate or sub-registrar |
| Registered Will with Photos | Section 60 Registration Act | Produce certified copy and sub-registrar endorsements | Strong presumption of regular official execution |
5. Supreme Court Precedents: Janki Narayan Bhoir & Babu Singh
Indian courts have laid down clear rules on how to prove a Will when witnesses have died or turned hostile. The two most important rulings are:
The Supreme Court held that Section 68 of the Evidence Act requires calling at least one attesting witness if alive. Only when no attesting witness can be found or all are dead does Section 69 apply. Furthermore, Section 71 is an aid to assist the court when a witness denies execution, preventing an authentic Will from being defeated by a dishonest witness.
The Supreme Court ruled that when both attesting witnesses have died, the propounder must prove two things: that the signature of the testator is in his handwriting, and that the attestation of at least one witness is in his handwriting. This can be established through family members, acquaintances, or official records bearing their genuine handwriting.
The Supreme Court reiterated that when both witnesses to a Will die before evidence is recorded, the court must carefully evaluate evidence of handwriting under Section 69. Proving one witness handwriting alongside the testator signature fulfills the statutory requirements.
6. Step-by-Step Evidentiary Procedure in Indian Probate Courts
If you are an executor or beneficiary seeking to prove a Will where both witnesses have died, follow these six practical steps:
Obtain certified death certificates from municipal or gram panchayat records. This proves to the court why they cannot be summoned.
Find contemporaneous signatures of the deceased witness on old bank cards, registered deeds, government identity cards, or letters.
Have an adult child, spouse, or long-time colleague of the deceased witness testify under oath that they recognize the signature.
Prove the testator signature using bank records, voter ID, or passport copies, and submit medical certificates showing sound mind.
Examine the advocate who drafted the Will or the registry clerk who recorded the thumb impression at the Sub-Registrar Office.
Submit the proven Will to the District Court or High Court for probate, or apply for municipal mutation under our land mutation services.
7. Checklist for Selecting Witnesses 15 to 20 Years Younger
The single best way to avoid these legal hurdles is smart planning when you write your Will. Most people pick their peers, siblings, or elderly friends as witnesses. By the time the Will is opened, those witnesses are often deceased or frail.
Follow these practical rules when choosing your attesting witnesses:
- Age Rule: Pick witnesses who are 15 to 20 years younger than you. They are much more likely to survive you and be healthy enough to testify in court.
- Never Pick a Beneficiary: Under Section 67 of the Indian Succession Act, if a beneficiary signs as an attesting witness, any gift or bequest to them or their spouse becomes void.
- Choose Professionals: Family doctors, chartered accountants, and lawyers make excellent witnesses because they keep professional records and their credibility is high.
- Record Full Details: Always write down the full name, father name, permanent address, Aadhaar number, and contact details of each witness next to their signature.
- Register the Will: While registration is optional under Section 18 of the Registration Act, registering your Will at the Sub-Registrar Office creates a permanent government record.
8. Sample Court Affidavit Clause Under Section 68 BSA
Here is a model affidavit clause used in Indian probate courts to prove a Will when both attesting witnesses have died:
Note: Adapt this affidavit template with your legal counsel for filing before the District Judge or High Court.
9. Securing Professional Will Registration & Dispute Defense
Proving a Will after both witnesses have passed away requires careful handling of evidence and court rules. If family members file a caveat or dispute the handwriting, you need seasoned advocates who understand probate litigation.
At WillDrafting.in, we help families protect their estates before disputes arise. You can draft an airtight, legally valid Will in minutes using our guided platform at WillDrafting.in. If you are facing an active court challenge, probate objection, or hostile witness, consult our senior legal team at AMA Legal Solutions. Learn more about our specialized courtroom defense at our Will Dispute & Litigation Lawyer service and our dedicated Probate Lawyer Service.
