Disputes over Wills are among the most emotionally charged and legally complex matters in family law. When a Will is challenged — on grounds of forgery, undue influence, or lack of testamentary capacity — the party relying on the Will must prove it was validly executed. The Hon'ble Supreme Court has now restated clearly how a Will must be proved, and more importantly, what shortcuts are not permitted.

The Two Routes to Proving a Will

Under the Indian Evidence Act, 1872 (now the Bharatiya Sakshya Adhiniyam, 2023), there are two provisions for proving a Will:

Section 68 is the ordinary and primary method. A Will must be proved by examining at least one of the attesting witnesses — a person who was present when the testator signed the Will and who also signed as a witness. The attesting witness must confirm: that the testator signed the Will, that they were present, and that they also signed in the testator's presence.

Section 69 is the exceptional method — available only when it has become impossible to examine any attesting witness under Section 68. Under Section 69, the propounder must prove that at least one attestation is in the handwriting of a witness and that the testator's signature is in their own handwriting. This is a comparatively easier mode of proof — which is precisely why it cannot be used freely.

What the Court Held

The Madras High Court had upheld the validity of a Will by directly invoking Section 69 — without first establishing that no attesting witness could be found for proving the Will under Section 68. The Supreme Court set this aside firmly.

Section 69 is not an alternative which the propounder may freely choose. It is an exceptional mode available only when proof through an attesting witness has become impossible. Before Section 69 can be invoked, the propounder must first establish that neither of the attesting witnesses can be found — through death, untraceable absence, or incapacity.

The Sequencing Rule

The sequence is mandatory — not optional. First, attempt to prove the Will under Section 68 by examining an attesting witness. Only if that has become impossible — both witnesses are dead, untraceable, or incapacitated — can Section 69 be invoked. A propounder cannot bypass Section 68 simply because Section 69 is more convenient.

Why Attesting Witnesses Matter So Much for Wills

A Will is different from any other document precisely because it takes effect only after the testator's death — meaning the person who made it can never appear in court to confirm its authenticity. The requirement of attesting witnesses, and of proving the Will through them, is the law's way of ensuring that a document purporting to be a Will actually represents the testator's genuine, voluntary, and conscious act.

This is why Wills are held to a higher standard of proof than ordinary documents, and why the propounder must affirmatively prove due execution — the burden never shifts to the challenger merely because the Will exists.

Practical Guidance for Will Disputes

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If you are relying on a Will: identify your attesting witnesses and ensure they are available to give evidence. Their testimony is the foundation of your case. If both witnesses are deceased, then — and only then — can you invoke Section 69 and prove the Will through handwriting evidence.

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If you are challenging a Will: if the propounder has gone directly to Section 69 without first establishing the impossibility of Section 68 proof, this is a procedural ground of challenge. The Will has not been properly proved.

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When drafting a Will: choose attesting witnesses who are younger than you, in good health, and likely to remain available. Witnesses who predecease the testator force reliance on Section 69, which is more burdensome. Ideally, also register the Will — registered Wills are harder to challenge and easier to prove.

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In Rajasthan, Will disputes are tried before the District Court in a testamentary proceeding. The burden of proving the Will always rests on the propounder — it does not shift merely because the challenger makes allegations.

Case Reference
Pazhanathal (Dead) Through LRs. & Ors. v. Alamathal (Dead) Through LRs. | Hon'ble Justice Sanjay Karol & Hon'ble Justice Nongmeikapam Kotiswar Singh | August 2026 | Hon'ble Supreme Court of India

Frequently Asked Questions

Questions people commonly search on this topic

How is a Will proved in India? +
A Will must primarily be proved by examining at least one attesting witness under Section 68 of the Indian Evidence Act. Only if it becomes impossible to prove attestation through a witness — because both witnesses are dead or untraceable — can the alternate route under Section 69 (proving handwriting) be used. The Supreme Court has held that Section 69 is not a freely available alternative.
What is the difference between Section 68 and Section 69 of the Evidence Act for Will proof? +
Section 68 is the primary mode — at least one attesting witness must be examined in court to confirm the Will's execution. Section 69 is the exceptional mode — usable only when proving through an attesting witness has become impossible. Under Section 69, the propounder must prove that the attestation is in a witness's handwriting and the testator's signature is genuine.
Can a Will be challenged if attesting witnesses are not examined? +
Yes. If the propounder relies on Section 69 without first establishing that Section 68 proof is impossible — because both witnesses are alive and available — the Will has not been properly proved and can be challenged on this ground.
Should a Will be registered in India? +
Registration of a Will is optional but strongly advisable. A registered Will is harder to challenge, easier to prove, and carries greater evidentiary weight. Registration is done before the Sub-Registrar. The Will can also be deposited in safe custody with the Sub-Registrar, which further protects it.