To `Will' Willfully

Avnish Mittal, Advocate
Punjab & Haryana High Court, Chandigarh
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Date : 13/07/2020 - Location : House No. 115, Sector 16-A, Chandigarh
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To `Will' Willfully

Where there is a will, there are relatives

A Will or testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. It is an instrument in which a person specifies his intention and desire to be applied in the management and distribution of his estate after his death. At Common Law, an instrument disposing of Personal Property was called a "testament," whereas a Will disposed of real property. Over time the distinction has disappeared so that a Will, sometimes called a "last will and testament," disposes of both real and personal property.

The term Will has been defined in Blacks Dictionary as - "The legal expression of an individual's wishes about the disposition of his or her property after death; esp., a document by which a person directs his or her estate to be distributed upon death". Collins Dictionary explains - "Will as the declaration of a person's wishes regarding the disposal of his or her property after death". Webster Dictionary defines it as - "a legal declaration of a person's wishes regarding the disposal of his or her property or estate after death especially: a written instrument legally executed by which a person makes disposition of his or her estate to take effect after death".

Thus, a Will is an instrument which leaves the estate of the person, who signed the Will, to named persons or entities (beneficiaries, heirs, legatees), including portions or percentages of the estate, specific gifts, creation of trusts for management and future distribution of all or any portion of the estate.

Though it has, at times, been thought that a "Will" historically applied only to the real property, while "Testament" applied only to the personal property, (thus giving rise to the popular title of the document as "last Will and Testament"), however over the times, the terms have been used interchangeably. Thus, the word "Will" validly applies to both the personal and the real property.

Throughout most of the world, disposal of an estate, of a deceased has been a matter of social custom, but originally, it was a device intended solely for men who died without an heir i.e. intestate. The English phrase "Will and Testament" is derived from a period in English law, when Old English and French laws were used side by side, for maximum clarity.

Under the Indian Succession Act 1925, a Will is a legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death. After the death of a person, his property devolves in two ways - according to his Will i.e. testamentary, or according to the respective laws of succession, when no Will is made. In case an individual dies intestate (no Will is made), the laws of succession come into play.

The testamentary succession is governed as per provisions of the Indian Succession Act, 1925, even in case of Hindus. However, the rules relating to the intestate succession, even for Hindus, are applicable as per the Hindu Succession Act, 1956.

It may also be mentioned that in the case of Muslims, the Indian Succession Act, 1925 is not applicable, to both the testamentary and intestate succession, as in their case, the succession is on the basis of the Uncodified law, which is based on Quran and other applicable laws and customs.

A Will serves a variety of important purposes. It enables a person to select his heirs, rather than allowing the State laws of descent and distribution to choose the heirs, who, although blood relatives, might be people the testator dislikes, or with whom he is unacquainted, or in some circumstances, where the property remains unclaimed, for want of any heirs, the same is taken over by the State as escheat. It also allows a person to decide which individual could best serve as the executor of his estate, distributing the property fairly to the beneficiaries while protecting their interests, rather than allowing a court to appoint a stranger to serve as administrator.

A valid Will cannot exist unless three essential elements are present. First, there must be a competent testator; Second, the document purporting to be a Will must be the honest expression of the testator's intention; Third, it must be clear that the testator intended the document to have the legal effect of a Will and be acted upon after as such after his death.

Under Section 18 of the Registration Act, 1908, the registration of a Will is not compulsory, and merely because of non-registration of the Will an inference cannot be drawn against its genuineness or validity. However, once a Will is registered, it forms a strong legal evidence that the proper parties had appeared before the registering officers, and the latter had attested the same after being satisfied of its registration procedure. Though the Will can also be registered after the death of the testator under section 40 of the Registration Act, but the same shall not add any useful benefit for the purpose of proving its due execution and authenticity.

In general, a Will made by the testator can be revoked at any time during his lifetime, and testator can even choose to make any alteration or make any other person as his legatee. There may be instances where a testator wishes to carry out some alterations in the Will, then he can make the required and necessary amendments in the prepared Will. The subsequent/supplementary document so prepared is known as a Codicil. A person, as the testator, has power to make instrument of Will, repeatedly and unenumerable times, revoking the earlier Will or changing the beneficiaries, or making any type of amendments therein, but it is always the last Will of testator which would prevail.

The Will, unlike any other document, is enforceable only after the death of the testator. Therefore, it is popularly called that the Will is the only document that speaks from the grave of the testator and where the person who intends to distribute his blessings and assets in a particular way is not there to endorse and prove the same. Accordingly, the existence, the due execution and validity of the Will is gathered from the circumstances. The initial burden to prove all these essentials with regard to due execution of a Will rests upon the person who propounds the same.

The party propounding a Will, or otherwise making a claim under a Will, is no doubt seeking to prove a document, and that too when the executor of the same is no more ,thus in proving the same , the relevant statutory provisions of Indian Succession Act ,1925, and Indian Evidence Act, become operative.

According to the Indian Succession Act, there are basically two types of Will. Privileged Will and Unprivileged Will. Privileged Wills are those that can be made by members of the armed forces employed in an expedition or engaged in actual warfare, and can be made in oral form as well. Unprivileged Wills are the Wills that can be created by every person, other than those who can create a Privileged Will.

The Relevant Law.

Section 63 in The Indian Succession Act, 1925.

63 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 rules: -

(a) 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.

(b) 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.

(c) 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.

Section 68 of The Indian Evidence Act, 1872.

Section 68- Proof of execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence 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: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

Though the provisions relating to the execution of a Will appear to be very simple, yet all the ingredients are required to be strictly proved, by dispelling all the suspicious circumstances, that may prick the conscious of the court. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator.

The following are the requisite and necessary factors, which have to be kept in mind while ascertaining, the due execution and validity of a Will.

• According to Section 63 of the Indian Succession Act, a Will needs to be attested by two or more witnesses, each of whom must have seen the testator sign or affix his mark to the `Will' and further, each of the witnesses to the `Will' should have signed the `Will' with the requisite Animus Attestandi.

• Likewise, according to Section 68 of Indian Evidence Act, a document required by law to be attested has to be proved by calling for the purpose of proving its execution at least one attesting witness. Thus, is it incumbent that:

• The Propounder of the `Will' has to prove that the `Will' was signed by the testator in the presence of two attesting witnesses;

• The attesting witnesses should have seen the testator sign the `Will' or else, the attesting witnesses should depose that they were told by the testator that the `Will' is that of the testator and the testator had signed the `Will'; and,

• It is not necessary that both or all the attesting witnesses to the `Will' must be examined to prove the `Will', but, at least one attesting witness should be called to prove the due execution of the `Will'.

Whether a particular `Will' is surrounded by suspicious circumstances or not is a question of fact, and depends upon the facts and circumstances of each case. Where the execution of a `Will' appears to be surrounded by suspicious circumstances, the Propounder has to explain all these circumstances, and has to remove the suspicion in the mind of the Court, in order to satisfy its conscience.

A thumb mark of the testator instead of his usual signature, a feeble mind, proof of his being a person of an unsound mind, undue influence upon the testator at the time of execution, an unfair and unjust disposition of property, apart from the propounder himself taking a leading part in the execution of the `Will', under which he himself is a beneficiary, may be termed as some of the suspicious circumstances. All the suspicious circumstances, in due execution of the `Will' have to be removed by the propounder of the `Will,' before the same can be accepted as legal and valid and be acted upon. Once the propounder is able to dispel all the suspicious circumstances, the onus of the same shifts upon the other party asserting it to be so, and challenging the execution thereof.

A Constitution Bench of the Supreme Court in Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee since deceased and others AIR 1964 SC 529 has held:

"The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 and Rani Purniama Devi v. Khagendra Narayan Dev, (1962) 3 SCR 195. The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."

Again, in Gorantla Thataiah v. Thotakura Venkata Subbaiah and others in 1968 AIR SC 1332 the Supreme Court reiterated the rule as laid down in Fulton v. Andrew, (1875) 7 HL 448 whereby it was held that "those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction". It was held that:

"There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out". In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well-known observations of Baron Parke in the case of Barry v. Butlin, (1838) 2 Moo PC 480 at p. 482. The two rules of law set out by Baron Parke are: "first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator"; "the second is, that, if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased."

Further in Janki Narayan Bhoir v. Narayan Namdeo Kadam 2003 RCR (1)(Civil) 409 Supreme Court held that, Section 68 of the Indian evidence act necessitates that a document in the shape of a "Will' which is required by law to be attested shall not be used as evidence, until and unless, at least one attesting witness to that document has been called in evidence for the purpose of proving its execution. Thus, according to the mandate of Section 68, if there is an attesting witness to a document, alive and capable of giving evidence, then that attesting witness, subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used as evidence. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness, there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.

It was further held in Ganesan (D) Through Lrs. v. Kalanjiam and Others 2019(3) RCR (Civil) 843:

"5. The appeals raise a pure question of law with regard to the interpretation of Section 63 (c) of the Act. The signature of the testator on the will is undisputed. section 63 (c) of the Succession Act requires an acknowledgement of execution by the testator followed by the attestation of the Will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed Will, read it out to them after which they attested the Will."

Thus, what may constitute to be a valid Will depends upon the facts and circumstances of each case and evidence led in the matter. It is sine qua non for the propounder of the Will to show, by way of satisfactory evidence that the Will was signed by the testator; and at that time he was in as sound and disposing state of mind; that he understood the nature and effect of disposition; and had put his signature to the document of his own free volition. If the Will is surrounded by suspicious circumstances, such as the alleged signature on the Will by the testator may be shaky and doubtful or indications that the testator's mind may appear to be very feeble or the testator may appear to be not of fully sound disposing mind, in that circumstance, the propounder will be called upon to dispel all the suspicious circumstances.

However, what may be a suspicious circumstance in one case may not be so in the other case. Each situation depends on the facts and circumstances of its own case. Disinheritance of natural heir, unequal distribution of assets, love and affection may be asserted as some more suspicious circumstances, but then the fact remains that the very purpose of `Will' is to change the natural line of succession. Thus, the mere fact that natural heirs are not given anything in the Will, or there is an unequal distribution of the assets among the heirs or siblings, would not de-facto make the same as a suspicious or an invalid and unenforceable document. The person challenging the same has to duly prove and show it to be surrounded by suspicious circumstances, that are enough to discard its authenticity.

The circumstances may so arise where a Will so propounded has not been used on purpose, or was not within the knowledge of the propounder or has not seen the light of the day for a period of more than 30 years for any reason, whether in these circumstances the propounder can be allowed to take an advantage of section 90 of the Indian evidence act to say that since it's a 30-year-old document and therefore it is authentic. The answer to such a question is `No' as such a presumption shall not apply in the case of a Will as was so held so in 2020 (1) CCC 513.

A Will so executed by the testator is liable to be revoked or altered anytime, till the time the executant is alive and is competent to dispose of his property. A testator who wishes to revoke his original Will, which is executed by him on a particular date, can do so by revoking the Will himself, by merely writing a subsequent Will, or alter the same by writing a Codicil, duly executed, and even by destruction of the previous Will. However as has been stated in the preceding paragraphs only the last Will of the testator would be treated as operative.

At this stage, it may also be pertinent to mention a few words about another form of Will -Holographic Will. A holographic Will is a Will and testament, which is a holographic document, i.e., it has been entirely handwritten and signed by testator. Although the probity and authenticity of such a handwritten Will, himself by the testator is of course on a much higher pedestal, but like any other Will, even in case of a holographic Will, it has to be proved that:

• There must be evidence that the testator actually created the Will, which can be proved through the statements of witnesses, handwriting experts, or other methods.

• The testator must have had the intellectual capacity to write the Will, although there is a presumption that a testator had such capacity unless there is evidence to the contrary.

• The testator must be expressing a wish to direct the distribution of his or her estate to beneficiaries.

However, we must hasten to add that the statutory requirements, stipulated under Section 63 of the Indian Succession act and also Section 68 of the Indian Evidence Act, have to be fully and duly complied with, even in case of a holographic Will, before it can be acted upon.

In this context it would be relevant to notice a few observations made by the Apex Court in the case of Mrs. Joyce Primrose Prestor (Nee Vas) v. Miss Vera Marie Vas & Ors, JT 1996 (4), 333:

12. while the presumption in the case of ordinary Wills is as stated above, in the case of "holograph Wills", the presumption is all the more - a greater presumption. Ex.P-1 is a "holograph will". It is one which is wholly in the handwriting of the testator. The Calcutta High Court in Ajit Chandra Majumdar v. Akhil Chandra Majumdar (AIR 1960 Cal. 551 at P. 552) stated about such a Will, thus: -

"The whole of this Will was written in the hand by the testator himself in English. The handwriting is clear and firm. The law makes a great presumption in favour of the genuineness of holograph will for the very good reason that the mind of the testator in physically writing out his own will is more apparent in holograph will than where his signature alone appears to either a typed script or to a script written by somebody else."

Further, it would be appropriate to notice that although, it is the general principle of law of Wills that the testator can not impose conditions or restrictions in the Will at the time of execution of the document, and any such conditions or covenants shall be treated to be a nullity, as taken in the totality of the document, yet there may be some circumstances where a covenant is included at the time of execution of the Will.

In Mohammad Raza and others v. Mt. Abbas Bandi Bibi AIR 1932 Privy Council 158 the Privy Council confirmed the judgment of the Chief Court of Oudh which had ruled that when a person is allowed to take property under a conditional family arrangement, he cannot be heard to complain against the restriction on alienation of the property outside the family.

It may also be pertinent to refer to a relevant portion of Sections 131 and 138 of The Indian Succession Act:

"Section 131. "Bequest over, conditional upon happening or not happening of specified uncertain event.

(1) A bequest may be made to any person with the condition superadded that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person"

"Section 138: Direction that fund be employed in particular manner following absolute bequest of same to or for benefit of any person-- Where a fund is bequeathed absolutely to or for the benefit of any person, but the Will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the Will had contained no such direction"

Laying the distinction between the two provisions it was held in Suresh Chand Mathur v. Harish Chand Mathur 2010 (30) RCR (Civil) 478 (Delhi)

"This section (Section 131) deals with a defeasance clause, whereas Section 138 of the Act deals with a repugnant clause. The distinction behind a repugnant provision and a defeasance provision is that where the intention of the Testator is to maintain an absolute estate conferred on the legatee, but he simply adds some restriction, in derogation of incidents of such absolute ownership, such restrictive clause would be repugnant to the absolute grant and, therefore void, but, where the grant of an absolute estate is expressly or impliedly made subject to defeasance o the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over is taken to be valid and operative. Section 138 thus provides for divestment of the estate which has already vested, but is subject to divested by some act or event at an after period. Of course, the defeasance must be in favour of somebody in existence at the time the bequest is made"

The Supreme Court in K. Naina Mohamed v. A.M. Vasudevan Chettiar 2010 (7) SCC 603, while examining the principles of English law on the issue of imposing a restriction on the Will, has held that the restriction which was meant to ensure that the property bequeathed by Smt. Ramakkal Ammal does not go into the hands of third party was perfectly valid and did not violate the rule against perpetuity evolved by the English Courts, or the one contained in Section 114 of the Indian Succession Act, 1925.

Further more, where a bequest is made to a person by a particular description, and there is no person in existence at time of the testator's death, who answers that description, the bequest is void. S.113 of Indian Succession Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has to be created in another person, and the bequest must comprise of whole of the remaining interest of the testator.

Thus what transpires from the above is that while the basic purpose of the Will is to honour the wishes of the deceased executor, with regard to his asset distribution, but what is most crucial of all is that the same have to be beyond all suspicious circumstances, with a clear intention of the executant, in a sound disposing mind. In order to constitute a sound disposing mind, a testator must not only be able to understand that he is, by his Will, giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his Will, he is excluding from all participation in that property. All this has to be done out of his free volition and without any influence and also without there being any element of fraud. There is one clearly distinguishing feature for the proof of Will than the other documents. As the Will, unlike other documents speaks from graveyard of the testator, and when the same is propounded or produced before the court, the testator has already departed from the world and has no comments to offer as to whether it is his duly executed Will, signed by him out of his own free volition and without any undue influence or not.

In a situation like this, it is for the court to prick its conscience to find out if the `Will' was executed willfully.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

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