Report No. 185

Section 68

We recommend that section 68 be redrafted as follows:

"68. Proof of execution of will required by law to be attested.- (1) If a will is required by law to be attested, it shall not be used as evidence of any testamentary disposition until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.

(2) Notwithstanding anything contained in sub-section (1), an attestor need not be called as a witness to prove the execution of a will if,-

(a) the attesting witness is incapable of giving evidence; or is kept out of the way by the opposite party or by another person in collusion with that party or is one whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or

(b) the will is in the possession of the opposite party; or

(c) a party wants to refer to any collateral fact contained in the will; or

(d) the provisions of section 89 or section 90 apply."