Grant for Probate of Will attested by Witness Two Days Prior to Execution By Testator, Denied: Calcutta HC

On the 28th of March, 2023 the Single Judge Bench of Justice Krishna Rao at Calcutta HC, denied granting Probate of Will that was attested by the Witness, 2 days prior to Execution by the Testator in a Petition put forward by Mr. Chandan Kumar Lal (PLA 426 of 2019)

Facts of the Case:

The petitioner had filed the application for the purpose of grant of probate of the last Will and Testament of the Testator, Buddhadev Bose. The Testator executed his last Will and Testament on 24th October 2013 by appointing the petitioner as Executrix of his last Will. The Testator died on 30th July 2019. As per the Will, the testator executed the Will on 24th October 2013, but one of the attesting witnesses had put the date in the said Will as 22nd October 2013.  The Will is a registered Will and the date of registration is also 24th October 2013. In the Will, there are two attesting witnesses but the petitioner has examined only one witness and the date of signature of the witness in the will is different from the date of execution of the Will by the testator and also the date of registration.  


The Court opined that to be an attesting witness, it is essential that the witness should have put his signature for the purpose of attesting that he has seen the executant sign or has received from a personal knowledge of his signature. If a person put his signature on the document for some other purpose, he is not an attesting witness.  In the present case, it is the case of the petitioner that the testator executed the Will on 24th October 2013 but as per Will and the evidence of one of the attesting witnesses signed the Will on 22nd October 2013. At the time of examination of the attesting witness, he also clarified that the date is correct. The other attesting witness was not examined.  In view of the above, the Court held that the petitioner did not prove the Will, and hence, the probate of the will was denied. 

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