Karnataka HC calls for tech adoption to ensure transparent will execution

Bengaluru: The Karnataka High Court has stressed the need to use technology to ensure unambiguous, credible, and conclusive records, especially in cases involving the execution of documents like wills.

Justice Anant Ramanath Hegde made these observations while partially allowing an appeal in a property dispute from Mysuru.

"Technology in the last two decades has advanced beyond comprehension. The office of the sub-registrar is now equipped with computer systems and web cameras. Video recording and storing the data is quite simple and inexpensive. The process of registration can be suitably amended to facilitate video recording of the statement of the testator and attesting witnesses. There is a need to embrace the technology to ensure that there is an unambiguous, credible, and clinching record relating to proof of execution of documents, more particularly the documents such as will where the author of the instrument will not be available to admit or prove its execution when its execution is disputed,” Justice Hegde said.

The case in question arose from a property dispute, with the trial court not framing any specific issue relating to the proof of the will.

Justice Hegde noted that the trial court was tasked with assessing the validity of a registered will from May 9, 2005, in a 2016 lawsuit. One of the parties in the case had examined an attesting witness in 2018 — 13 years after the will's execution.

Justice Hegde pointed out that disputes involving wills frequently end up in court.

The legal framework for wills, established during the colonial era through the Indian Succession Act, 1925, and the Indian Evidence Act, 1872, has remained largely unchanged. Even with the introduction of the Bharatiya Sahkshya Adhiniyama 2023, there have been no significant changes to the mode of proof for wills, Justice Hegde said. 

“The experience of life tells us that in many cases where a dispute surrounding the execution of a will is tried in courts, the attesting witness will be deposing before the court many years after the execution of the will. The witness may not be in a position to give the correct account of what transpired when the will was executed or when he signed as an attesting witness. At times, a witness may predecease the testator. Though the law provides for a different mode of proof in such a situation, the fact remains that the best witness is no more,” Justice Hegde said.

The court further said, “Under the existing law, proof of will and the fulfilment of the last wish of the testator is entirely dependent on the ability of the attesting witness to withstand the cross examination by a skilled and trained lawyer. Sometimes, if not all times, the atmosphere in the court, the presence of a judge, lawyers, and the parties to the proceedings, may infuse a sense of fear or anxiety in the mind of a witness while deposing before the court. In such a scenario, the witness may fumble, even if the will is genuine. In the process, it is quite possible that the last desire/wish of the testator may not get fulfilled at all.”