Law of Wills in India: An overview

 

What is a Will? An Overview

The Indian Succession Act is the law governing wills. It applies to almost all Indians except Muslims.

A Will is a legal declaration made by a person regarding the distribution of his assets after his death. (Section 2 (h) of the Indian Succession Act.)

Codicil- Sometimes the testator may draft an additional instrument to explain, alter or add to the contents of his will, such documents are referred to as codicils. Legally, a codicil is a part of the will.

A Privileged Will is a special kind of will that becomes relevant only during a war, or in cases wherein soldiers are engaged in active combat duty.

What kind of assets can be bequeathed through a Will?

All kinds of movable and immovable assets including real estate, money deposited in banks, securities, and even brand names, trademarks, and Intellectual Property Rights.

Even though a will is a legal document, there is no prescribed format for it. It could be handwritten or typed.

A will is never final till its owner breathes his last. It may be revoked or altered by its owner at any time prior to his/her death.

Two preconditions for a Will to be legally admissible-

As per Section 59 of the Indian Succession Act, a person making a will.

-       Must have attained majority.

-       Should be sound of mind at the time of preparing the will.

-       A person suffering from intermitted episodes of mental illness may prepare a legally admissible will during the periods of normalcy, though this fact would have to be proved.

-       A will prepared by a person in a state of intoxication or in a state of illness of a kind that affects his ability to comprehend the consequences of his acts is not legally admissible.

-       Overall, the law wants to ensure that the person making the will could form a rational judgment as to the consequences of his acts at the time of preparing it.

What kind of assets can be bequeathed through a Will?

All kinds of movable and immovable assets including real estate, money deposited in banks, securities, and even brand names, trademarks, and Intellectual Property Rights.

Even though a Will is a legal document, there is no prescribed format for it. It could be handwritten or typed.

Two preconditions for a Will to be legally admissible-

As per Section 59 of the Indian Succession Act, a person making a Will.

-       Must have attained majority.

-       Should be sound of mind at the time of preparing the will.

-       A person suffering from intermitted episodes of mental illness may prepare a legally admissible Will during the periods of normalcy, though this fact would have to be proved.

-       A Will prepared by a person in a state of intoxication or in a state of illness of a kind that affects his ability to comprehend the consequences of his acts is not legally admissible.

-       Overall, the law wants to ensure that the person making the will could form a rational judgment as to the consequences of his acts at the time of preparing it.

Witnesses

A will must be executed in the presence of two witnesses who testify to having seen the testator put his signature on it. (Section 63 (3) of the Indian Succession Act).

It is advisable that a will is registered and duly stamped. Though, this is not an indispensable legal requirement.

Execution of a Will

Following the death of the testator, the process of its execution is initiated by applying for a Probate in a competent court of law.

Put simply, a ‘Probate’ is a legal certificate from a Court of law as to the genuineness of the will.

A ‘Probate’ is obtained by filing a petition before the court, along with a schedule of the property and a copy of the will.

Components of a typical Will:

1.   Personal details of the testator, including his name, address, and other details necessary to establish his identity.

2.   A Declaration that the will is being prepared is a sound state of mind, free of any coercion and that it is the testator’s last will.

3.   All necessary personal details of the beneficiaries, so that they may be legally identifiable in the document.

4.   The executor of the will- It is always advisable to appoint an executor of the will. The executor’s job is to ensure that the will is executed as per the directions of the testator mentioned in it. An executor may be a family friend, lawyer, or a chartered accountant etc. Usually, however, this is not expressly required; in case there is no executor, the court would appoint an administrator to look over the execution of the will.

5.   And lastly, the most obvious- the actual division of assets and property and their respective beneficiaries.

 

Main laws governing the ‘Will’ are as follows:

The Indian Succession Act, 1925

The Code of Civil Procedure, 1908

The Indian Registration Act, 1908

The Indian Stamp Act, 1899

 

Usual grounds on which Wills get challenged-

1.   Presence of coercion, fraud, or undue influence at the time of making the will. Basically, it must be established that the testator was not acting as per his free consent.

2.   Questioning the authenticity of the will

3.   If the will is ambiguous or contradictory in nature. This could also imply that the testator was not of sound mind at the time of drawing the will.

4.   If the signature of either the testator or one or both the witnesses is absent, then the validity of the will is liable to be challenged.

Can a Will be challenged after a Probate is granted?

Yes, if it can be established that certain facts crucial to the case were withheld or concealed from the court. Sometimes rival versions of the will may surface, casting the authenticity of the original will into doubt. In such instances, a will may be challenged after a Probate has been granted.

Under certain circumstances, the law permits persons with vested interest in the assets and property of the testator to enter into a contract to put a bar on any legal challenge to the will in future.

Revocation of a Will

As per Section 62 in the Indian Succession Act, a will is liable to be revoked or altered by its maker at any time before his death.

If the whereabouts of a will cannot be ascertained after the death of the testator; and it can be established that it was last seen in his possession, then it shall be presumed to have been destroyed by the testator.

Drafting of new will implies the automatic revocation of all previous wills.

If a testator wishes to revoke a will, he may do so by making a written declaration to this effect.

If a testator tries to tear down, burn, or destroy a will, then this act may be taken as a sign of his intention to revoke the will.

If the testator gets married after drafting a will, then the old document is deemed to have been automatically revoked.

 

What happens in case a person dies without drafting a Will?

His assets are distributed among his surviving heirs according to the succession law specific to his religion.

 

 Some common mistakes that hinder a Will from getting executed as per the wishes of the deceased.

-       When the specific details about the assets to be divided are missing or inaccurately mentioned.

-       Sometimes, the property and assets of a person may change drastically after drafting of the will, and before he passes away. Not updating the will accordingly may lead to complications and disputes among rival claimants.

-       Appointing an interested party as the executor of the will frequently leads to legal disputes.

-       Not appointing a trustworthy guardian for minor children.

 

Registration:

Registration of a will is not legally compulsory. However, registering it is a safeguard against alteration and tampering after the death of the testator. Registering a will is no hindrance to modifying it later. A testator is at liberty to revoke and reframe his will as many times as it pleases him.

Registration of a will is also a safeguard against the death of the witnesses. In case either one or both witnesses die before the heir of the deceased can obtain probate from the court, then he may face complications in proving that the will was indeed signed in the presence of two witnesses.

As per Section 40 of the Indian Registration Act, a will may be registered even after the death of the testator.

Is a handwritten Will legal in India?

A Handwritten will is legal, provided that the contents are legible and all the essentials of a valid will have been fulfilled.

 

Some of the most common grounds for challenging a ‘Will’ are- lack of due execution, lack of testamentary intention, undue influence, lack of knowledge about the contents of the Will, and allegations of fraud and forgery.

Overall, all circumstances that arouse suspicion regarding the authenticity of a Will, or actual intent of the testator are considered valid grounds for challenging a Will.

In PPK Gopalan Nambiar v PPK Balakrishnan Nambiar (1995(2) SCR 585) it was observed by the Hon’ble Supreme Court that “It is the duty of the propounder of the Will to remove all the suspected aspects, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind.”

In a similar spirit, in Delhi Development v Mrs Vijaya C Gurshaney and Anr., (2003) 7 SCC 301, the Court observed that, “It is a settled law that Testamentary Court whilst granting Probate or Letter of Administration does not even consider uncontested matters, or the motive behind execution of a testamentary instrument. A Testamentary court is only concerned with finding out whether the testator indeed executed the testamentary instrument of himself.”

However, a different interpretation was held by the hon’ble Supreme Court in its judgment dated 19 May 2020 in Kavita Kanwar v Mrs. Pamela Mehta & Ors [Civil Appeal No. 3688 of 2017]. In this case the Apex Court observed that while dealing with an uncontested Will, the Court being a Court of conscience still must satisfy itself as to the genuineness of the Will.  From a reading of this judgment, it is clear that simply meeting the requirements for proof of a will in terms of Section 63 of Indian Succession Act, 1955 and Section 68 of the Evidence Act, 1872 may not suffice for grant of Probate; the suspicious circumstances revolving around the execution of the will must be removed. The important take away in the case is that if there are multiple suspicious circumstances surrounding the execution of a will, a combined effect of those circumstances can be enough to deny the grant of a probate even if the individual factors on their own standing would not have been enough for such denial. 

Prior to the above judgment, a Constitution Bench of the Hon'ble Supreme Court in Shashi Kumar Banerjee & Ors. vs. Subodh Kumar Banerjee & Ors., AIR 1964 SC 529, had passed a landmark judgment that laid down the fundamental principles governing the proving of a will. “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. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same.” 

As to what circumstances qualify as suspicious were listed in Bharpur Singh & Ors. Vs Shamsher Singh, (2009) 3 SCC 687 by the Supreme Court-

1.   The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.

2.   The condition of the testator’s mind may be very feeble and debilitated at the relevant time.

3.   The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.

4.   The dispositions may not appear to be the result of the testator's free will and mind.

5.   The propounder takes a prominent part in the execution of the Will.

6.   The testator signed blank papers.

7.   The Will did not see the light of the day for long.

8.   Incorrect recitals of essential facts

In addition to enumerating these circumstances, the Hon’ble Court also observed that the list is not exhaustive but more in the nature of a guideline.

 

Though Bharpur Singh & Ors. vs.Shamsher Singh (2009) considered prominent participation of the propounder in the execution of the will as constituting a suspicious circumstance, a prior judgment, Uma Devi Nambiar vs TC Sidhan (Special Leave Petition (civil)  9026 of 2002) had observed that, ‘Active participation of the beneficiary in the execution of the will or exclusion of the natural heirs cannot lead to an inference that the will was not genuine.’ It was further observed by the Court in this case that, “A will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will.”

The above interpretation was reiterated in Rabindra Nath Mukherjee v Panchanan Banerjee, 1995 AIR 1684, 1995 SCC (4) 459, wherein it was observed that the 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, it is quite natural that natural heirs would be debarred every once in a while.

However, this interpretation was not upheld in Anil Kak v Kumari Sharada Raje and Ors., 2008 (3) MPJR (SC) 102. The court observed that ‘It may be true that deprivation of a due share for a natural heir by itself may not be held to be a suspicious circumstance, but it is one of the factors which is taken into consideration by the courts before granting probate of a Will.

To ascertain whether a will is genuine or not the Court laid down a few tests in H Vekatachala Iyengar v BN Thimmajammma, 1959 AIR, 1959 SCR Supl. (1) 42,-

-          Whether the testator has signed the Will?

-          Did he understand the nature and effect of the dispositions in the Will?

-          Did he put his signature to the Will knowing what it contained?

The Court said that broadly, that it is the determination of these questions that will decide the question of proof of a will. Though the propounder is not expected to prove the will by mathematical certainty and has only to show the execution in terms of the essential statutory requirements under the Act, in the presence of suspicious circumstances, 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.

Apoline D’Souza vs John D’ Souza (2007) 7 SCC 225 is one instance wherein, suspicious circumstances surrounding the execution of a will were upheld as conclusively proving that the testator did not sign the will of her free will- the testatrix was a 96-year-old lady. The propounder could not show as to who drafted the will or at whose instance it came to be registered. Nor could it be proven that the contents of the will were read over and explained to the testatrix. In addition to this the will was suffused with cuttings and over writings. Since, the propounder of the will in question failed to remove suspicious circumstances, the Court felt inclined to set aside the will as being of doubtful authenticity.

A will is a very special kind of document. It allows a dying to man to exercise his discretion in the disposal of his property. This freedom also means that the regime of natural succession stands suspended; a person writing his will can choose who his beneficiaries are going to be; and it also allows him to disinherit his blood relations.

Respecting the wishes of the dying man being the primary purpose of the law of wills in India, most cases pertaining to wills revolve around the determination of the intent of the testator. Standards of justice and equity are not applicable, because the sole criterion for determination is the intent of the dying person, who is at liberty to dispose of his property just as he pleases.

Since a dead man cannot testify, naturally, the wordings used by him in his last will is the only guiding light available to the Courts to ascertain how he desired his property to be disposed of.

However, the problem with interpreting wills is that often they are drafted by the testator himself, or laymen who are not acquainted with legal parlance and terminology. It may not be a tightly written document, or worse, it may be written in a manner open to multiple interpretations.

Courts have adopted multifarious ways to ensure that the real intent of the testator is gleaned from the text of the will, some of which we are going to discuss in the following paragraphs.

In Vikrant Kapila & anr. V. Pankaja Panda & ors, it was observed by the Hon’ble Court that judges need not necessarily interpret wills from a lawman’s perspective if it becomes clear to the Court that the will has not been drafted by a legal practitioner. An objective matter of fact legal interpretation in such cases may draw conclusions very far removed from the testator’s actual intent. In the same case it was observed that the Court’s effort in this case was to glean the essence of the words of the testator, rather than reading it in a strictly formalistic manner.

One problem with trying to step into the shoes of the testator in this manner is that it opens the possibility of subjective disagreements. Not every person would necessarily interpret an ambiguous text in the same manner; therefore, through successive judgments Courts have laid down some broad guidelines for interpretation. Though, at times these cannot be applied in a mechanical manner as concrete real-life situations tend to be complex.

In Navneet Lal v. Gokul, AIR 1976 SC 794 it was observed that one way for judges to interpret could be that they ‘become the testator’ and figure what he would have wanted. This may work in most instances, but in some cases the testator and the judges may belong to very different linguistic or cultural backgrounds. In such cases, stepping into the shoes of the testator may not necessarily be a viable strategy for interpretation.

While dealing with wills written in a non-legal format Courts have mainly tended to adopt the ‘Plain meaning rule’- sticking to the most obvious interpretation that a common man might make of the language of the will. When the plain meaning rule fails to shed light on the true intent of the document, adopting a more flexible approach may come in handy. In such instances, Courts may adopt what was referred to as the ‘armchair rule’ in Against The Preliminary Decree vs By Adv.Sri.S.K.Brahmanandan on 31 January, 2001. As summed up succinctly in the judgment, -"You may place yourself, to speak, in (the testator's) armchair, and consider the circumstances, by which he was surrounded when he made his will, to assist you in arriving at his intention."

The so-called ‘armchair’ rule of interpretation is also embodied in Section 75 of the Indian Succession Act, 1925, which reads as follows, “For the purpose of determining questions as to what person or what property is denoted by any words used in a will, a Court shall inquire into every material fact relating to the persons who claim to be interested under such will, the property which is claimed as the subject of disposition, the circumstances of the testator and of his family, and into every fact a knowledge of which may conduct to the right application of the words which the testator has used.”

In addition to this Sections 84-88 lay down an exhaustive set of guidelines to interpret the intent of the testator-

Section 84 states that in case a clause of the will can be inferred to have two separate meanings, one of which has some effect while the other does not, the former shall be preferred.

Section 85 states that if any part of the will has the possibility to be reasonably construed then it cannot be rejected as deficient of meaning; whereas Section 87 reiterates that the will of the testator is the sole criteria for ascertaining the true interpretation of a will.

Against The Preliminary Decree vs By Adv.Sri.S.K.Brahmanandan on 31 January, 2001 laid down a five point guideline to interpret a will’s intent- “the first rule of construction of a will is that it should be read in its entirety to understand the intention of the testator. Secondly, intestacy shall not be lightly inferred. If two interpretations are possible, the view in favour of testacy should be preferred. Thirdly, to resolve any ambiguity, the words used in a will should be understood with reference to all the provisions in the will. Fourthly, if occasion so demands, the court should even supply an omission to give effect to the intention of the testator. Fifthly, ordinary, or technical meaning of a word or phrase may be discarded, if it is inconsistent with the general intention, as expressed in the will, read as a whole.”

The intent of the testator and a realistic assessment of the meaning of the text of the will are two main principles based on which Courts have ascertained the meaning of ambiguous wills.