How do you proof execution of will?

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How do you proof execution of will?

 

Shubham Budhiraja

LLB, CS, BCOM(H)

Shubhambudhiraja02@gmail.com , 9654055315

Advocate, Delhi High Court

Member of Research Committee, Northern Region-ICSI

Member of Delhi High Court bar association

Running an NGO “Shaurya ek Samman” duly registered under Society registration act, 1860

 

The trial court dismissed granting letter of administration/ probate but High Court allowed in appeal. The Supreme Court[1] set aside the HC Judgment and held that the will was executed in suspicious circumstances because the testator was bed ridden and was suffering from critical disease where he was not able to sign documents. Hence, the execution of will is not proved.

 

Case laws

Relevant Remarks

H.Venkatachala Iyenger vs.

B.N.Thimmajamma, AIR 1959 SC 443

 

Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will.

Three aspects must be proved by a propounder:-

(i) that the will was signed By the testator in a sound and disposing state of mind duly understanding the nature and effect

Of disposition and he put his signature on the document of his own free will, and

(ii) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator mind and his signature as required by law, courts would be justified in making a finding in favor of  propounder, and

(iii) If a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounded can be taken to be discharged on proof of essentials facts indicated therein.

Jaswant Kaur v. Amrit Kaur and other, 1977 1 SCC 369

When a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial proceeding, becomes in such cases, a

matter of the Court's conscience and then, the true question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as would satisfy the conscience of the Court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstance surrounding the making of the will

Bharpur Singh and others v. Shamsher Singh, 2009 (3) SCC 687

Suspicious circumstances like the following may be found to be surrounded in the execution of the will:

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

(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.

(iii) 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.

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

(v) The propounder takes a prominent part in the execution of the will.

(vi) The testator used to sign blank papers.

(vii) The will did not see the light of the day for long.

(viii) Incorrect recitals of essential facts.

Subject to offering of a reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.

Naranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433

There exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion

Anil Kak v. Sharada Raje, (2008) 7 SCC 695

Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the will annexed must also adduce

evidence to the satisfaction of the court before it can be accepted as genuine.

As an order granting probate is a judgment in rem, the court must

also satisfy its conscience before it passes an order.

Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation.

 


[1] Civil Appeal No. 4270 of 2010, Supreme Court of India, Judgment dated 10th December 2021, 2 JJ

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