The arduous task of proving a Will: The Supreme Court's judgment on “Suspicious Circumstances”

The Supreme Court of India recently delivered a significant and exhaustive judgment on the debatable issues surrounding the execution of a Will and grant of probate in the matters of testamentary succession under the Indian Succession Act, 1925 9 (Kavita Kanwar v. Mrs Pamela Mehta & Others).

The judgment deals with the characteristic and most used argument of “suspicious circumstances” to invalidate a Will, or in simple words, to assert that the Will is unworthy of believing.

A circumstance is considered “suspicious” when it is not normal or is ‘not normally expected in a normal situation’ or is ‘not expected of a normal person’. Illustrative instances of suspicious circumstances could be a shaky or doubtful signature of the testator; feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary. However, such suspicion should be real and valid, and not merely a fantasy of a doubting mind.

Before coming to the analysis of the judgment, it would be useful to note that the law of testamentary succession is codified under the Indian Succession Act. Chapter VI of Part VI of the Act (Sections 74 to 111) deals with the construction of Wills, while Part IX of the Act deals with the grant of Probate/Letter of Administration.

As a matter of practice for proving a Will, a petition is filed before the competent court for the grant of probate/letters of administration. After the petitioner discharges the initial burden of proving the Will by showing compliance of the provisions of the Act and calling the attesting witness(es), the court calls upon the contesting party to state its objections to the validity of the Will. At this stage, the contention of suspicious circumstances surrounding the execution of the Will is raised by the respondent to say that the disposition of the properties as stated in the Will is not the genuine wish of the testator. This argument of suspicious circumstances comes in several hues depending upon the facts and circumstances of the matter.

Facts of the case

The appellant (a major beneficiary) was a losing party, both in the trial court and the High Court, whereby the Will of the mother (testator), propounded by the appellant herself as the executor, was disbelieved. Under this two-page Will, the appellant was the major beneficiary of the estate of the testator to the exclusion of other legal heirs, namely one widowed sister and a brother (the respondents).

Interestingly, the property in question came to the mother through the Will of the father, who was the original owner of the property. During his lifetime, he had already gifted a portion of the original property to the appellant. It was for the other remaining portions of the same property that the disputed Will was formulated.

Another important aspect of the matter was that the Will was partly holographic (handwritten by the testator) in a way that the first and the last portions of the Will were written by hand by the testator and the rest of the portions, which actually dealt with the devolvement of the property, were typed and printed.

Arguments of the parties

It was the case of both respondents that the Will was shrouded with suspicious circumstances as per the evidence led by them, and therefore, must be disbelieved. It was argued that in the absence of any dispute with the mother of the respondents, there was no reason for the mother to exclude her children and grandchildren. Therefore, the Will is unnatural and does not express the intention of the testator. Further, the Will so propounded has an additional third page which has not been filed by the appellant, and therefore, the Will is incomplete.

The appellant, on the contrary, argued that she had discharged the burden of proving the execution of the Will by the testimony of two attesting witnesses. Secondly, it was for the testator to decide about the bequeathing of properties.

Evidence before Court

On appreciation of the evidence by the trial court and the High Court, the following facts emerged out of evidence led by the parties. First, the relations between the testator mother and the respondents were cordial. It was shown that the mother was happy with the respondents, one of which had taken good care of her. Second, the mother could not complete her education beyond Class X and was not computer literate. Third, the Will had certain sections containing technical and legal jargon that could not be understood by a layperson.

Fourth, the appellant could not explain why only certain portions were handwritten, while certain parts were typed out. Fifth, it was found that the testimony of the appellant stating that she had not participated in the execution of the Will was wrong and contradictory. It emerged that the appellant, contrary to her evidence and pleadings, had in fact played a vital role in the execution of the Will. Lastly, the Court found no credibility in the testimony of the attesting witnesses, as the daughter of one witness had borrowed money from the appellant and the other was utterly unknown to the testator.

Curiously, the Court also found that though the appellant had rejected the presence of third page of the Will in the trial court, before the appeal in the High Court, she did a volte-face and in fact relied on the third page to dispel the evidence of suspicious circumstances.

Judgment

The Apex Court, after meticulously analysing the evidence led by the parties and the law on the subject, dismissed the appeal as it found that “thick clouds of suspicious circumstances are hovering over the Will in question”.

To arrive at this conclusion, the Court first culled out the legal propositions from several other landmark judgments. It first relied upon H Venkatachala Iyengar v. BN Thimmajamma, wherein the Court laid down a few tests to determine the genuineness of the Will. These included: “Has the testator 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, it is the decision of these questions which will determine the question of proof of Wills. Though the propounder is not expected to prove the Will by mathematical certainty and only has 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.

The Court then relied on Jaswant Kaur v. Amrit Kaur & Others, which held that in cases where the Will is shrouded in suspicion, the true question that arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator.

In another judgment titled Shivakumar & Others. v. Sharanabasppa, the Court held that if a person challenging the Will alleges fabrication or fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him. But even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free Will.

Coming to the facts of the present matter, on the issue of non-filing of the written statement by one of the respondents, the Supreme Court held that the probate court is a court of conscience and by the very nature and consequence of the proceedings, filing or non-filing of the written statement or objections by any party pales into insignificance and is of no effect. It was held,

"The probate proceeding is not merely inter-partes proceeding but leads to judgment in rem and, therefore, even when no one contests, it does not ipso facto lead to grant of probate."

After testing the evidence on the threshold of the legal principles stated above, the Supreme Court dismissed the appeal particularly for the reason that the appellant tried to mislead the courts by showing her innocence about the execution of the Will by the testator, even though she played an active part in the execution of the Will and arranging the witnesses.

The Court further rejected the argument of giving greater presumption of sanctity to a holographic Will, by observing that the Will in question does not answer the description of a holographic Will directly because, except for the opening and concluding paras, the entire Will is in electronic print. It was observed that even the handwritten portion is not in the diction of the testator and contains typical legal words like “testament, codicil, give, devise and bequeath” which cannot be understood by the layperson.

The Court extensively examined the curious flip-flop of the alleged third page of the Will by the appellant to conclude that if the proof of Will is marred with such confounding factors, the same can never get the approval of the Court. It ultimately held that in the totality of circumstances, there appears to be no reason for the testator to bestow all property to appellant and to exclude other legal heirs. Therefore, it cannot be said that the testatrix executed and signed the alleged Will after having understood the meaning, effect and purport thereof.

Conclusion

An impression that may arise in the mind of readers is that if so many factors can be put forward before the courts against the grant of probate of a Will, is there any real possibility of a Will standing the scrutiny of the Court? The answer to that query would be in the negative, as it is well established that any stand-alone reason individually does not operate against the validity of the Will and may not be decisive, unless after taking all relevant factors into consideration, the Court finds the same to be not representing the real wish of the testator.

The Court in such cases applies the celebrated rule, called the “Arm Chair rule”, of interpretation of a Will which says "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 author is an Advocate-on-Record practicing at the Supreme Court of India and the Delhi High Court.