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

Q.31 What are the requirements to be satisfied for proving due execution of a Will ? Ans. On the question of proof of due execution of a will, the Apex Court in Jaswant Kaur v. Amrit Kaur 1977 (1) SCC 369 = AIR 1977 SC 74 made the following observations in para 10:- “10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will Those decisions have been reviewed in an elaborate judgment of this court in H. Venkatachala Iyengar v. B. N. Thimmajamma (1959) Supp (1) SCR 426 = AIR 1959 SC 443 . The Court, speaking through Gajendragadkar J. laid down in that case the following propositions: Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.Since S.63 of the Succession Act required a will to be attested, it cannot be used as evidence until, as required by S.68 of the Evidence Act, 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.Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity, in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. If a caveator alleges 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 raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter”. Q. 32 What is onus probandi and animo attestandi ? Ans. The Latin expressions onus probandi and animo attestandi are the two basic features in the matter of the civil court's exercise of testamentary jurisdiction. Whereas onus probandi lies in every case upon the party propounding a will, the expression animo attestandi means and implies animus to attest : to put it differently and in common parlance, it means “intent to attest”. As regards the latter maxim, the attesting witness must subscribe his signature to the instrument with the intent that the subscription of the signature made, stands by way of a complete attestation of the will and evidence is admissible to show whether such was the intention or not. NOTE BY VRK: A perusal of Section 63 of the Indian Succession Act, 1925, will show that in the case of an unprivileged Will, “execution” includes “attestation” and it is unnecessary to refer to Section 3 of the Transfer of Property Act, 1882 to comprehend the meaning of “attestation” as has been...

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

Justice V Ramkumar

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