“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-IX]

Q.41 What are the usual occasions for proving a Will and what is the burden which is on the propounder’s shoulder ? Ans. The question of proving a Will can arise in an ordinary civil litigation or before a testamentary Court. When the Will is propounded by any of the parties to a litigation, the burden to prove the same is always on the propounder. This burden becomes heavier if the execution of the Will is surrounded by suspicious circumstances like – the dispositions contained therein appearing to be unnatural, improbable or unfair or it gives rise to an indication that the Will was not the result of the testator’s free will and volition, orwhere the alleged signature of the testator appearing on the document seems shaky and doubtful, orwhere the propounder of the Will taking a prominent part in the execution of the Will which confers substantial benefits to him, or where importunity has been brought to bear on the free will of the testator. In such circumstances, the Court would ordinarily be reluctant to treat the document as the last will executed by the person with the requisite testamentary capacity, unless the propounder is able to remove the suspicious circumstances and clear the conscience of the Court. In the absence of any suspicious circumstances surrounding the execution of the Will, proof of due execution of the Will and the testamentary capacity as to whether the testator was in a sound disposing mind, are sufficient to discharge the onus on the propounder. But, if any of the vitiating circumstances such as “undue influence”, “fraud”, “misrepresentation”, “coercion”, “collusion” etc are alleged in the execution of the Will propounded, the burden to prove those circumstances will be on those who attack the Will on such grounds. (Vide – Musammat Biro v. Atma Ram, AIR 1937 PC 101 – Roche, Shadi Lal, G Rankin – JJ; “This was a case where the wife was practically disinherited and there was unexplained delay in producing the will in public. There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage. The bulk of the estate was vested in the widow of the testator and three other women, namely, his mother, his stepmother and his paternal aunt 'These women though entitled under the Hindu Law only to maintenance were made joint owners equally with the widow of the testator. None of the devisees could get the estate partitioned or alienate it for necessity. It was, however, provided that the lady, who survived the other three devisees, would become the absolute owner of the estate. The widow of the testator would not get her husband's estate, if she predeceased any of her codevisees. The will was not produced until 22 years after its execution though there were occasions to produce it, had it been in existence. Considering these circumstances, the Privy Council observed (at p. 104): "It is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a will which would practically disinherit them. That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed. But this is not the only circumstance which tells against its genuineness. The will purports to have been executed on 24th August 1900, and the testator died within a month of that date. But it is strange that it was not produced until 1922, after the commencement of the present litigation. During this long period of 22 years, which intervened, there were occasions when the widow or her advisers could have produced the document, if it had been in existence; but they did not do so " · H. Venkatachala Iyengar v. B. N. Thimmajamma AIR 1959 SC 443 = 1959 KHC 498 (SC) – 3 Judges - . L. Venkatarama Ayyar, P. B. Gajendragadkar, A. K. Sarkar - JJ; “There may, however, be cases in which the execution of the will may be surrounded by suspicions circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely...

“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-IX]

Justice V Ramkumar

Tags