How do you proof execution of will?
How do you proof execution of
will?
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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.
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Case laws |
Relevant Remarks |
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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. |
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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 |
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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. |
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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 |
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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. |
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