The Law relating to Wills

'Will' as defined under Section 2(h) of the Indian Succession Act means 'the legal declaration of the testator with respect to his property which he desires to be carried into effect after his death'. The essential characteristic of a will, as is well known, is that it is a mere declaration of an intention so long as the testator is alive, a declaration which may be revoked or varied by the testator during his lifetime; it is a disposition that requires the testator's death for its consummation and is but ambulatory or without fixed effect until the happening of this event. The document is a will if it contains specific words of bequest to come into effect after the death of the testator.

A will is a solemn document. By it, a dead man entrusts to the living to carry out his wishes and since it is impossible that he can be called either to admit or deny his signatures or to explain the circumstances in which it was executed, duty of care is cast on the shoulders of the court while considering a probate case.

The rules governing the propounding of a will are two. First, the onus probandi lies in every case upon the party propounding the will and he must satisfy the conscience of the Court that the instrument so propounded is the last will of the testator. Second, if a party actively participates in the execution of a will under which he takes a benefit, it is a circumstance to excite the suspicion of the Court and calls upon the court to be vigilant and zealous in examining the evidence on record.

The strict meaning of the term 'onus probandi' is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. In all cases the onus is imposed on the party propounding the will. It is in general discharge by proof of capacity and the fact of execution from which the knowledge of and assent to the contents of the instrument are assumed.

The nature of proof required to prove a will is not different from those required to prove other documents except the requirement of attestation prescribed under Section 63 of the Indian Succession Act. The proof is to be tested on the usual satisfaction of a prudent mind. What distinguishes a will from other document is that the testator would not be available to testify the same as his last will. This introduces an element of solemnity in the decision. Even then the Court has to proceed with the enquiry in the same manner as is done in respect of any other document. The propounder is called upon to show by satisfactory evidence that (1) the will was signed by the testator in the presence of two attesting witnesses; (2) at the relevant time he was in sound and disposing state of mind; (3) he understood the nature and effect i.e., the content of the disposition; (4) he put the signature to the document of his own free will. The onus of the propounder can be said to be discharged on proof of the above essential facts.

However, in a case surrounded by suspicious circumstances viz.: the disposition may appear to be unnatural, improbable or unfair in the light of the relevant circumstances; or there may be indications that the disposition was not the result of the testator's free will and mind, such suspicious circumstances make the initial onus very heavy; and unless satisfactorily discharged, the Court would be reluctant to treat the document as the last will of the testator. Where the propounder takes a prominent part in the execution of the will conferring benefit upon him, that is a suspicious circumstance attending the execution of the will; the propounder is required to remove the doubt by clear and satisfactory evidence. In other words the propounder must satisfy the conscience of the Court that the document is the last will and testament of the testator.

Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even if there is no such plea but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. If the propounder is able to satisfy the conscience of the Court, the Court shall grant the probate, even if the will cuts off, wholly or in part, near relations. It is the will of the testator that is reflected in the will. Being the testator's own property, he has the liberty to deal with it absolutely. It is not for the Court to find out justification or equity or otherwise in the action of the testator. It is not for the Court to make it fair or to sermonize. It is not for the Court to refuse the grant on account of the fact that the disposition is not just and fair or is unnatural or improbable when the conscience of the Court is clear about the proof of the execution of the will on the face of the evidence, satisfactorily sufficient, to remove the suspicious circumstances.

As the wills are too frequently made by the sick and dying, the degree of understanding and memory which the law requires is such as may be reasonably expected from persons in that condition. thereforee, it is wrong to suppose that those qualities of mind should be possessed by the testator in the highest degree, position or to the same extent as before the illness in order to enable him to validly make his will. Section 59 of the Indian Succession Act requires that the testator should have a sound mind. The sound mind referred to does not mean that the testator should have his mental faculty in their fullest vigour, but means that he should have the capacity to understand the nature of his property; memory to remember the relations and persons normally having claims on his bounty and has also a judgment. As observed by their Lordships of Privy Council in the decision reported as Judah v. Isolyne MANU/PR/0028/1945, the fact that the testator was unwell when he executed the will is a long way from saying that he had no testamentary capacity. The testator does not have to be found in perfect state of health to have his will declared valid. It is sufficient to prove that he was able to outline the manner in which his estate was to be disposed of.

The general principles governing the presumption of due execution and attestation are, if a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Act, the maxim 'omnia presumuntur rite esse acta' applies, unless it is clearly proved that the will in fact, was not duly executed. The Court of probate has long being accustomed to give great weight to the presumption of due execution arising from the regularity ex facie of the testamentary paper produced where no suspicion of fraud has occurred.

Where once it has been proved that a will has been executed by a person of competent understanding, the burden of proving that it was executed under undue influence is on the party who alleges it. The Privy Council laid it down in the decision reported as Mst. Gomtibai v. Kanchhedilal MANU/PR/0018/1949 that undue influence in order to invalidate a will must amount to coercion or fraud. Its extents must be established and it must also appear that it was actually exercised on the testator.

The burden of proving undue influence is not discharge by merely establishing that the person had power unduly to overbear the will of the testator. It must be shown that in any particular case that power was, in fact, exercised and that it was by means of exercise of that power that the will was obtained. This was observed by the Calcutta High Court in the decision reported as Chandra Majumdar v. Akhil Chandra Majumdar MANU/WB/0150/1960 : AIR1960Cal551 . Relying upon the decision of the Hon'ble Supreme Court in the decision reported as Naresh Charan Das Gupta v. Paresh Charan Das Gupta and Anr. MANU/SC/0113/1954 : [1955]1ITR1035(SC) it was observed that it is elementary that law does not regard or charactize every interest which is brought to bear upon a testator as undue. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favor and if the testator retains his mental capacity and there is no element of fraud or coercion, the will cannot be attacked on the ground of undue influence. Not all importunities are undue influence. While making said observation, the Hon'ble Supreme Court in Naresh Charan Das Gupta's case (supra) quoted the observation of Lord Penzance in the decision reported as Hall v. Hall 1868 (1) P & D 481 "but all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like - these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made.... In a word, a testator may be led, but not driven; and his will must be the offspring of his own volition, and not the record of some one else's".

The golden rule in interpreting a will is to give effect to the testator's intention as ascertained from the language, which he has used. The overriding duty of a Court is to construe the language which the testator has in fact employed giving due weight to all the words and rejecting none to which a meaning can reasonably be assigned. The Court is entitled to put itself into the testator's arm chair to construe a will and to form an opinion apart from the decided cases and then, to see whether those decisions require any modification of that opinion and not to beckon by considering as to how far the will in question resemble other will upon which the decisions have been given. The proposition that the will has to be read as a whole cannot be disputed. Whether there is a will on the basis of the document, the probate Court certainly will not proceed to consider as to whether or not the disposition of the property was good or bad. The primary duty of the probate Court is to see first whether prima facie, the document constituted a will.

Case Laws on Wills – Various Aspects

Probate Court – Powers – Not to decide right or title

·       Chiranjilal Shrilal Goanka vs. Jasjit Singh (1993) 2 SCC 507

Law is well settled as per decision of Supreme Court that question of right, title, share and ownership is not to be decided in the probate proceedings.

Burden of Proof & Suspicious Circumstances

·       Indu Bala Bose vs. Manindra Chandra (1982) 1 SCC 20

Not only the burden to prove the due execution of the Will is upon its propounder but for success of case, she is also under obligation to explain and remove suspicious circumstances surrounding the Will by sufficient and cogent evidence.

·       P.P.K. Gopalan Nambiar vs. P.P.K. Balakrishnan AIR 1995 Supreme Court 1852

The Supreme Court is of the view that suspicious circumstances must be real, germane and valid and nor fantasy of the doubting mind.

·       B. Venkatamuni vs. C.J. Ayodhya Ram Singh 2006 (11) SCALE 148

Supreme Court held that despite proving of genuine signatures of testator on the Will by its propounder, court still can probe the matter deeper to satisfy its conscious about the due execution of the Will.

·       Venkatachala Iyengar vs. B.N. Thimmajamma AIR 1959 Supreme Court 443

·       Indu Bala vs. Manindra Chandra Bose (1982) 1 SCC 20

·       Surendra Pal vs. Saraswati Arora (1974) 2 SCC 600

Supreme Court held that if propounder of the Will has taken prominent part in the execution of the Will and received substantial benefit under it, then that itself is generally treated as suspicious circumstances.

·       Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao 2007 (1) AD (SC) 477

Unequal distribution

·       Ramabai Padmakar Patil vs. Rukminibai AIR 2003 Supreme Court 3109

·       S. Sundaresa Pai vs. Sumangala T. Pai AIR 2002 Supreme Court 317

Will is executed to alter the mode of succession and is bound to result in either reducing or depriving the share of natural heir so uneven distribution of assets among children by itself cannot be taken as a circumstances causing suspicion surrounding the Will in all situation so the Will in question has to be accepted.

·       Rabindra Nath Mukherjee and Anr. Panchanan Banerjee (dead) by LRs. and Ors. MANU/SC/0322/1995 : (1995) 4 SCC 459

Circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly.

·       Pentakota Satyanarayana v. Pentakota Seetharatnam MANU/SC/0819/2005 : (2005) 8 SCC 67

·       Uma Devi Nambiar v. TC Sidhan MANU/SC/1026/2003 : (2004) 2 SCC 321

·       Mathew Jacob v. Salestine Jacob MANU/DE/0604/1998 : AIR 1998 Del 390

·       Khusbir Singh v. The State MANU/DE/0595/1989 : AIR 1990 Del 59

Circumstance of the Will depriving natural heirs should not raise any suspicion since the idea behind the execution of a Will is to interfere with the natural line of succession.

·       Pushpavati and Ors. v. Chandraja Kadamba and Ors. MANU/SC/0396/1972 : AIR 1972 SC 2492

If the propounder succeeds in removing the suspicious circumstance, the Court would have to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations

·       Sunita Shivdasani vs. Geeta Gidwani AIR 2007 Delhi 242

·       Sumitra Devi vs. State 2007 (98) DRJ 617

Held that where Will is found attested only by one witness, then the same cannot be held as valid Will.

·       Benga Behera vs. Braja Kishore Nanda AIR 2007 SC 1975

Role of an advocate for purpose of becoming attesting witness

·       N. Kamalam vs. Ayyaswamy AIR 2001 SC 2802

Presence of draftsman or scribe of the Will at the time of execution as well as his signatures on the Will in that capacity does not make him an attesting witness.

·       Hari Chand vs. Jeet Pal 2007 VII AD (Delhi) 341

A scribe who also acts as an attesting witness and was remained present throughout can be treated as an attesting witness, however it has to be shown that the scribe put his signatures for the purpose of attesting the document.

·       Bhagat Ram vs. Suresh AIR 2004 Supreme Court 436

The Registrar who has registered a document in discharge of his statutory duty does not become an attesting witness on the deed solely on account of his having discharged the statutory duties relating to the registration of a document.

·       Shashi Kumar vs. Subodh Kumar Banderjee AIR 1964 SC 529

If the propounder of the Will is able to remove the suspicious circumstances, then court has to give effect to the Will even if it is unnatural is the sense that it cut off wholly or in part near relations.

·       Ram Piari vs. Bhagwant 1990 RLR (SC) 285

That disinheriting legal heir without any reasons is also one of the ground for treating the Will not genuine coupled with other circumstances.

·       Bala Prasad & etc. Vs. Bhola Nath and others AIR 1981 NOC 29 (Allahabad).

The fact that the testator made his Will only four days before his death is not suspicious circumstance.

·       Brij Mohan Lal Arora Etc. Vs. Girdhari Lal Manucha AIR 1978 SC 1202

The testatrix died on the same day, a few hours of the alleged Will. The Apex Court observed that same is not a suspicious circumstance.

·       Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others (1997) 1 Supreme Court Cases 369.

The burden of proving due execution of the Will lies on the party setting up the Will

·       Jamuna Bai Vs. Surinder Kumar AIR 1998 MP 274

Provisions of Section 281 of the Act are directory.

·       Karri Nookraju Vs. Putra Venkatarao and Ors AIR 1974 Andhra Pradesh 13

Registration of Will though not required under law is only a piece of evidence of the execution. It cannot have greater sanctity. Registration cannot take the place of due attestation of the document as per the provisions of Section 63 (c) of the Succession Act.

·       Pentakota Satyanarayan & Ors. Vs Pentakota Seetharanan & Ors (2005) 8 Supreme Court Cases 67

It is settled law that in a case where the respondent alleges undue influence, fraud and coercion, the onus lies on him to prove the same.

Limitation in Probate

·       


     Kunvarjeet Singh vs. Kirandeep Kaur 2008 XII AD (SC) 580

In the probate proceedings, law of limitation applies and under Art. 137 of Limitation Act, petition has to be filed within a period of three years from the date when right to apply accrues.

Probate Not Necessary in Delhi

·       Bihari Lal Ramcharan v. Karam Chand Sahni MANU/PH/0030/1968 : AIR 1968 P&H (at Delhi) 108 (DB)

·       Rajan Suri v. The State MANU/DE/2417/2005 : AIR 2006 Delhi 148

·       Banwari Lal Charitable Trust v. Union of India MANU/DE/2515/2009

·       Prithipal Singh Sabharwal v. Jagjit Singh Sabharwal MANU/DE/0851/1996

As far as the city of Delhi is concerned, probate is not necessary to claim/assert rights under a Will. Even in the absence of a probate, such rights under a Will can be established in a collateral proceedings in which the Will may be in question.

Caveatable Interest – Who can File?

·       Krishna Kumar Birla v. Rajendra Singh Lodha MANU/SC/1693/2008 : (2008) 4 SCC 300

The propositions of law which in our considered view may be applied in a case of this nature are:

(i) To sustain a caveat, a caveatable interest must be shown.

(ii) The test required to be applied is: Does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right?

(iii) It is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein.

Holographic Wills - Presumption

·       Joyce Primrose Prestor v. Vera Marie Vas MANU/SC/1538/1996 : (1996) 9 SCC 324

·       Shashi Kumar Banerjee v. Subodh Kumar Banerjee MANU/SC/0278/1963 : AIR 1964 SC 529

·       Ramakant Chaturvedi v. MC Chatruvedi MANU/DE/0651/2001 : 94 (2001) DLT 511

The strong presumption of validity in favour of holograph wills.

Video Recording of execution of Will - Admissible

·       State of Maharashtra v. Prafull B. Desai MANU/SC/0268/2003 : AIR 2003 SC 2053

·       Sube Singh v. State of Haryana MANU/SC/0821/2006 : AIR 2006 SC 1117

·       Rajendra Singh Rana v. Swami Prasad Maurya MANU/SC/0993/2007 : AIR 2007 SC 1305

The Supreme Court has in recognized in principle, although in the context of a trial, that evidence by way of video recording is admissible.

Consolidation of Probate & Suit for Partition

·       Virender Gupta v. Nitender Gupta MANU/DE/0364/1987 : 31 [1987] DLT 406

·       Mrs. Rajni Mehra and Ors. v. Shri Pran Nath Mehra and Ors. MANU/DE/0822/2001

·       Nirmala Devi v. Arun Kumar Gupta and Ors. (2005) 12 SCC 505

·       Balbir Singh Wasu v. Lakhbir Singh and Ors. (2005) 12 SCC 503

The court ordered that the suit and probate proceedings be tried together on the ground that the issue in one suit was all embracing and fully covered the entire disputes between the parties and the applications were accordingly allowed.

·       Ravi Khanna v. Pankaj Khanna and Ors. 152 (2008) DLT 484

Mere pendency of a suit for partition puts no bar for grant of probate or letter of administration under the Provisions of the Succession Act. It is settled law that probate Court has jurisdiction to determine about the genuineness of the Will and whether the petitioner who applied for the probate was entitled to grant of probate of the Will or not.






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