Make perfect your will: Avoid futile disputes

Make perfect your ‘Will’ is an old adage.  In law, more so, it is all the more essential so as to withstand judicial scrutiny.  A Will, or testament, is a legal declaration made by a person how his property and assets shall be distributed after his death.  A testator, considering his health and age, makes a Will how his property, both moveable and immovable, assets, cash or other valuables, shall be bequeathed after his death to obviate futile disputes and litigation among children, spouse and other heirs.

Unlike other documents, the Will speaks from the death of the testator as to the circumstances in which the Will came to be executed. There is an element of solemnity in deciding the question whether the document propounded is proved to be the last Will and testament of the testator. A properly drafted Will makes the intention of the testator clear, more so, where the intended distribution of property is not in accordance with the provisions of the succession law, or there is unequal distribution. The term is very wide term but here we are confined to the basic ingredients of a Will.

The statutory provision governing a Will, including its execution, is enshrined in Section 63 of the Indian Succession Act, 1925. The testator must declare that he is declaring the Will voluntarily, while in a sound and disposing state of mind, that (s) he fully understands the nature and effect of the Will being made, and that it is being made without any coercion, fraud or undue influence. 

If the testator/testatrix wishes to modify or revoke or cancel his earlier Will(s), it must be so stated clearly in the last Will being drafted, as multiple Wills are susceptible to creating more disputes.  The Will must contain the complete details of the properties and assets to be bequeathed and the complete details of the beneficiaries, their age, address etc., and the exact share of each. It must contain a residuary clause to the effect that all remaining assets, movable/immovable/tangible/intangible, not specifically mentioned in the Will, shall devolve upon a particular beneficiary or that these too shall be shared in the manner indicated by the testator. The testator must sign the Will or affix his mark of approval and it must be signed by two witnesses.  Each witness must sign the Will in the presence of the testator.  Under the law, there is no prescribed format, but it must fulfil the ingredients of a Will as indicated in S/63 of the Act.

Though, ex facie, the drafting of a Will appears simple yet, experience bears it out, great many disputes arise in probating the Will due to inherent deficiencies or due to allegation of fraud or coercion or non-cooperative attitude of the witnesses who signed the Will or non-availability of the witnesses.  So much so, disputes have been reaching the Supreme Court by from time to time.  In the landmark judgement H. Venkatachala Iyenger v. B.N. Thimmarajamna (1977), the Supreme Court,  speaking through Justice Gajendragadkar (later CJI), laid down the propositions that a Will has to be proved like any other document-the usual test of the satisfaction of the prudent mind; examination of at least one attesting witness for the purpose of proving its execution, if there be an attesting witness alive capable of giving evidence and proof of essential facts by the propounder which go into the making of the Will.

But, the cases in which the execution of the Will is surrounded by suspicious circumstances, they stand on a different footing. “A shaky signature, a feeble mind, an unfair and unjustified disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit”, raise suspicion about the execution of the Will.  Such a suspicion cannot be erased merely on the ground that the Will bears the signature of the testator or that he was in sound state of mind.

The presence of suspicious circumstances about execution of the Will excites suspicion and the propounder must remove suspicion to the satisfaction of judicial conscience.  Allegations of fraud, undue influence, coercion, etc., in execution of the Will give rise litigation which the testator precisely wanted to avoid.  In Jagdish Chand Sharma v. Narain Singh Saini & Ors (2015), the Supreme Court held that if the evidence of the witnesses produced by the propounder u/s 68 of the Indian Evidence Act, 1872, is found worthless and lacking in credibility, the propounder cannot invoke S/71 of the Indian Evidence Act to supplement failed speculative endeavour.  Where the propounder explicitly fails to produce primary evidence, he cannot be allowed to prove by other evidence.

Both the Sections have to be “construed harmoniously” and “not divorced with a mutilative bearing”. This view was reiterated in Raj Kumar and Others v. Surinder Pal Sharma (SC2019).  Further, the aid of S/71 can only be taken when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence.  It has no application when one attesting witness, who alone has been summoned, has failed to prove the execution of the Will and the other attesting witnesses, though available, has not been called.

In fine, a Will, in order to avoid serious legal challenge, must be drafted with meticulous care and foresight. It must be drafted, preferably by an independent lawyer well versed in case law, must be attested by two independent witnesses and must be signed by the testator in sound and disposing state of mind, voluntarily, without any coercion or undue influence.  The original Will must be safely preserved along with supporting contemporaneous evidence, if any.  In case of unequal distribution of the assets in the beneficiaries, the decision must be so stated clearly and conscientiously by the testator in the Will to nip any suspicion.

Registration of Will is not mandatory under Indian law but it does provide additional evidentiary support at the time of grant of probate by the Court.  The testator must select witnesses who later do not deny the attestation or do not turn hostile under undue influence, mindful of their age, so that at least one of them is available to tender evidence at the time of probation.

The authors are members of the Supreme Court Bar Association. Devender Singh Aswal was ex Addl Secretary, Lok Sabha; Views presented are personal.