Whether the Court can refuse to probate the will merely because there are disputes on timing of drafting the will?

-

 




SHUBHAM BUDHIRAJA[1]

Ms. A (Mother) executed a Will in favor of his elder son Mr. C and died in year 1995. Mr. B (Father) executed the registered will and died in year 2005. The Elder son Mr. C died  in the year 2005. The other son Mr. D filed a partition suit to divide the family property whereas wife of elder son Mr. C filed petition to probate the Will of Mother and Father. The Court Probated the Will. The High Court set aside the Will for reason that Will was drafted in suspicious circumstances because (i) Mother and Father were ill during days when they Will was drafted, (ii) Mr. C being direct beneficiary was present at time when will was drafted, (iii) There are contradictory statements regarding timings when will was drafted. The Supreme Court set aside the High Court order and held that Will was not executed in suspicious circumstances because (i) the signatures are not disputed; (ii) the Father was attester in Mother’s will, (iii) Father Will was registered one, (iv) Father will in its recital has confirmed the Mother’s will[2].

 

(I)                 The law relating to suspicious circumstances surrounding the execution of a Will is already well settled. The Court in Kavita Kanwar vs. Mrs. Pamela Mehta and Ors. AIR 2020 SC 544 wherein the Court referred to almost all previous decisions right from H. Venkatachala Iyengar vs. B.N. Thimmajamma AIR 1959 SC 443 But cases in which a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. This can be seen from the fact that almost all previous decisions of the Court referred to in Kavita Kanwar (supra) list out circumstances, which in the context of the lack of sound and disposing state of mind of the testator became suspicious circumstances.

 

(II)               In the matter of appreciating the genuineness of execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. The Court does not apply Article 14 to dispositions under a Will.


[1] Advocate, Delhi High Court, Shubhambudhiraja02@gmail.com

[2] Civil Appeal No.1565 of 2022

Comments

Post a Comment

Popular posts from this blog

Whether a person can be appointed as an arbitrator if his daughter is married to the son of the eldest brother of one of the parties in the arbitration proceedings?

-
Image
    Shubham Budhiraja [1] Two brothers running a family business in the form of a company and dispute arise between them and both decide to resolve through arbitration. During course of arbitration proceedings, one of party filed Section 14(2) r/w Section 15 Petition filed challenging mandate of arbitrator as being terminated because son of arbitrator is married to daughter of eldest brother of one of party and thus should be disqualified under Section 12(5) being ‘close family relationship’. The Hon’ble Delhi High Court declined the relief and held that neither the Seventh Schedule of the A&C Act nor the IBA Guidelines define the expression ‘close family relationship’. The plain language of Entry no. 9 indicates that it is not the legislative intent to render a distant relative of the parties to be ineligible for being appointed as an arbitrator, if both the parties so agree. It is not sufficient that the arbitrator is related to any one of the parties; the relationship must
Read more

ELECTRONIC EVIDENCE: THE UNFERTILE CROP

-
Image
ELECTRONIC EVIDENCE: THE UNFERTILE CROP SHUBHAM BUDHIRAJA [1] Digital images are no different from the droplets of rain that fall, merge, and then divide: there is no telling whether the droplets that split are identical to the droplets that came together to form the larger droplet [2] . INTRODUCTION Law may be divided into substantive and procedural laws. The laws by which rights, duties and liabilities are defined are called substantive law whereas laws which prescribe mode by which application of substantive law is regulated are called procedural law. Law of Evidence is a judicial recognition to the system of logical reasoning. The Indian Evidence act, 1872 is a bunch of 167 sections divided into 11 chapters and 3 parts. Part II, Chapter V is headed as “of Documentary Evidence” is of relevance for our discussion in this article. At the threshold, it is submitted that the proving of oral evidence are in contrast to the proving of documentary
Read more

REPUGANCY UNDER ARTICLE 254 & TEST OF VALIDATING LAW

-
Image
  Shubham Budhiraja [1] [1] Company Secretary, LLB Final Year,DU & Bcom (H) The land acquisition falls in concurrent list and parliament in year 2013 has introduced a new act which provides for rehabilitation, compensation and procedure on land acquisition of property. The State of T.N has made 3 different state laws w.r.t. land acquisition which was struck off by the High Court. Thereafter, state of TN in year 2019 enacted the same law but with president assent under Article 254 to avoid the repugnancy with 2013 act under Article 254. The appeal filed before apex court w.r.t. repugnancy of 2019 state law with 2013 central law & test of validating the struck off law. The Supreme Court observed as: VALIDATING A LAW WITH RETROSPECTIVE EFFECT Case Law Relevant Remarks National  Agricultural  Cooperative  Marketing  Federation  of India Ltd. & Anr. vs. Union of India & Ors, (2003) 5 SCC 23 The legislati
Read more