In this Article we will endeavour to understand as to what the "suspicious
circumstances" are which can happen in the execution of a Will. A Will being a
document which only comes into play after the death of the Testator must be
construed very carefully as it is said to be a document which speaks from
"beyond the grave". In this article we will endeavour to understand the
suspicious circumstances which can negate the presumption which exists in favour
of a registered Will.
Legal Provisions Vis A Vis Will's:
The Indian Succession Act 1925 is the Law which governs the execution and
registration of Will's in India. As per Section 63 of the said Act63 Execution
of unprivileged Wills:
Every testator, not being a soldier employed in an
expedition or engaged in actual warfare, 12 [or an airman so employed or
engaged,] or a mariner at sea, shall execute his Will according to the following
- The testator shall sign or shall affix his mark to the Will, or it shall
be signed by some other person in his presence and by his direction.
- The signature or mark of the testator, or the signature of the person
signing for him, shall be so placed that it shall appear that it was
intended thereby to give effect to the writing as a Will.
- The Will shall be attested by two or more witnesses, each of whom has
seen the testator sign or affix his mark to the Will or has seen some other
person sign the Will, in the presence and by the direction of the testator,
or has received from the testator a personal acknowledgement of his
signature or mark, or the signature of such other person; and each of the
witnesses shall sign the Will in the presence of the testator, but it shall
not be necessary that more than one witness be present at the same time, and
no particular form of attestation shall be necessary.
Therefore, we can see that to prove a Will it is only required that 2 witnesses
who have seen the person sign the Will attest to its validity. In terms of
Section 59 of the said Act also any person who is of sound mind and of majority
age, that is aged 18 years and above can make a Will. In terms of Section 61 of
the said Act a Will should be deemed void if there is some element of fraud or
coercion, therefore we will see through case Law elucidation as to how these
circumstances exist which can make a Will null and void.
Kavita Kanwar v/s Pamela Mehta:
Appellant was the daughter of the Testatrix, who was the owner of a property
in Defence Colony. Other than the Appellant daughter she also had a widowed
daughter who resided with her in the Suit Property, and a son who was an
Army officer. By way of the said Will the major portion of the property was
bequeathed to the Appellant daughter, in an highly unequal manner.
Appellant daughter filed for Probate before the Ld. Trial Court, however the
same was not accepted as it was held that there are suspicious
circumstances. It is also stated that the High Court of Delhi also treated
the execution of the said Will as suspicious, and refused to grant Probate
with respect to it. The matter reached the Hon'ble Apex Court for hearing.
The Hon'ble Apex Court held that the exclusion of the rest of the children
from the Will, despite one of them being a widowed lady, who was even
residing with the Testatrix and the son who was getting her treated for
cancer in the army hospital, also the fact that the Appellant played a
prominent part in the execution of the Will are "suspicious factors", and
which have not been sufficiently explained by the Appellant herein.
H. Vekatchala Iyenger vs Thimmajamma: In the instant case the Appellant had sought a declaration that he was the
sole owner of the property of the Testatrix. The Will was not held to be
proved as the Testatrix was unable to prove the Will in question as that
there was no evidence to show that the contents of the Will were even
explained to him in any manner at all, or that she knew its contents.
In these cases it is shown that if there are suspicious circumstances
clouding the execution of the Will, then in that scenario the Court will not
allow probate of the said Will in question.
Now we shall see a case where the Ld. Courts refused to interfere with the
wordings of a Will despite there being challenge being issued to the said
Will by one of the Testator's relatives.
Indu Bala Bose v/s Manindra Chandra Bose: In the instant case one Ranendra made a Will wherein he bequeathed one-half
of his property to Bhabhesh, who was his nephew, and the remaining half to
one of his brothers. Probate was filed for the said Will and Caveat was
filed in it by one of the brothers alleging that the Testator was not in
sound mind, and that his signatures were not genuine.
The Trial Court
refused to interfere with the wording of the said Will and the Supreme Court
also opined that there were no suspicious circumstances and after his
demise, litigation broke out between the brothers, which was the intention
of the Will all along.
We can therefore see that the Court's usually are averse to interfering with
Will's unless there are major discrepancies in the making of such Will's such as
beneficiaries playing a prominent role in the execution of the Will's,
Testator's Will being written in English or use of legal phraseology when it is
a matter of record that the Testaror/Testatrix is unlettered or a person of low