Probate Petition and Attesting-Witness Affidavit
Section 276 of the Indian Succession Act, 1925 prescribes the particulars to be stated in a petition for probate or for letters of administration with the Will annexed. In a probate case, the petition should identify the testator's death, the Will relied upon, its due execution, the assets likely to come to the petitioner's hands and, where probate is sought, the fact that the petitioner is the executor named in the Will.
For an unprivileged Will, Section 63 of the Indian Succession Act requires execution by the testator and attestation by two or more witnesses in the manner prescribed by that provision. During judicial proof of a Will, Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 generally requires at least one attesting witness to be called, where such a witness is alive, capable of giving evidence and subject to the process of the Court.
Sample Affidavit Format
IN THE COURT OF THE __________________________ AT __________________
TESTAMENTARY / PROBATE PETITION NO. ______ OF 20____
IN THE MATTER OF THE ESTATE OF
LATE ____________________________________, DECEASED
AFFIDAVIT OF ATTESTING WITNESS
1. I, ____________________________, son/daughter/wife of ____________________________, aged about ____ years, residing at ________________________________________________________, do hereby solemnly affirm and state as follows:
2. I personally knew Late ____________________________ (the "Testator/Deceased") and I am one of the attesting witnesses to the Will dated ____ / ____ / ______. I am competent to depose to the facts stated below.
3. On ____ / ____ / ______, at ____________________________________________, I was present when the Testator signed/affixed his or her mark to the Will / acknowledged the signature or mark appearing on the Will as his or her own.
4. The Testator signed or acknowledged the Will in my presence. I thereafter signed the Will as an attesting witness in the presence of the Testator. The other attesting witness, Shri/Smt. ____________________________, also attested the Will in the manner stated therein.
5. The signature/mark appearing on the Will as that of the Testator is the signature/mark made or acknowledged by the Testator. The signature appearing against my name as an attesting witness is my signature.
6. At the time of execution of the Will, the Testator appeared to me to be of sound and disposing mind, capable of understanding the nature and effect of the document, and executed the Will voluntarily and without any force, coercion or undue influence, to the best of my knowledge and observation.
7. The document shown to me and annexed/filed in the probate proceeding is the Will dated ____ / ____ / ______ which I attested as stated above.
DEPONENT
VERIFICATION
I, ____________________________, the above-named deponent, do hereby verify that the contents of paragraphs 1 to 7 above are true and correct to my personal knowledge and belief, derived from the events witnessed by me, and that nothing material has been concealed therefrom.
Verified at ____________________________ on this ______ day of ________________, 20____.
DEPONENT
Solemnly affirmed before the authorised officer/notary/oath commissioner, as applicable under the filing practice of the court concerned.
Applicable Legal Provisions
Section 276 - Indian Succession Act, 1925
Governs the contents of a petition for probate or letters of administration with the Will annexed. The petition must state the prescribed particulars relating to the testator, the Will, due execution, assets and the executor.
Section 63 - Indian Succession Act, 1925
For an unprivileged Will, the testator must sign or affix a mark, or another person may sign in the testator's presence and by direction. The Will must be attested by two or more witnesses in accordance with Section 63(c).
Section 67 - Bharatiya Sakshya Adhiniyam, 2023
Where a document is required by law to be attested, at least one attesting witness is ordinarily required to prove execution if an attesting witness is alive, capable of giving evidence and subject to the Court's process. The statutory exception for certain registered documents does not extend to a Will.
Sections 280 and 281 - Indian Succession Act, 1925
These provisions deal respectively with signing and verification of a probate petition and verification of a probate petition by a witness to the Will. They should be read together with the applicable court rules and filing forms.