Proving the authenticity of a will
Any doubts about a will, even if it is registered, can be challenged if there is something suspicious about its execution
Proving the authenticity of a will in courts of law becomes a prerequisite if it is challenged by anyone. This must be done before the immovable properties of the deceased can be administered and distributed amongst the beneficiaries named under the will. Proving that a particular document was indeed the last will and testament of the deceased can often be a challenge, given that one is free to replace, revoke, modify and alter any and all provisions of one’s earlier will as many times as one wishes to during one’s lifetime.
There have been numerous rulings on the factors and rules which should be taken into consideration by the courts when deciding whether a particular will is genuine and/or whether it had been duly executed as per the provisions of Indian Succession Act, 1925. If there is anything suspicious about a will and it is challenged, all such legitimate doubts have to be removed by satisfactory and sufficient evidence to dispel all suspicion. Only then would the courts recognise the will to be final, and grant probate or letters of administration, as the case may be. Obtaining probate or letters of administration, wherever compulsorily required, facilitates inheritance of properties of the deceased as per his/ her desires in the will. Examples of suspicious circumstances are numerous and varied, such as:
The dispositions made in the will may appear unnatural or unfair in the light of the unique circumstances such as the absence of any provisions for inheritance of properties by natural heirs of the deceased, especially where no clear reason has been specified in the will. However, the fact that a natural heir has not been given any share in the properties to be inherited under the will, is not automatically or always viewed as a suspicious circumstance by the courts
When the testator has been known t o routinely sign blank papers
When a doubt is created as to the state of mind of the testator at the time of execution of the will, despite his/her signature being present on the will Where the propounder himself has taken a prominent part in the execution of will, under which he is to receive substantial benefits Where the will surfaces after an unusually long time after the death of the testator The apex court in H Venkatachala Iyengar vs BN Thimmajamma (1959), held that in such cases, the propounder of a disputed will must prove that the will was signed by the testator in a sound state of mind and that the testator had fully understood the nature and consequences of the disposition he/she was about to make. The testator had put his signature on the will voluntarily, and not under the influence of fraud or coercion. In Niranjan Umeshchandra Joshi vs Mrudula Jyoti Rao (2006), the apex court held that the onus of proving that the will is validly executed and is a genuine document lies on the propounder (that is, the party seeking to obtain probate and/ or letters of administration of the will).
Many are under the erroneous impression that if a will is registered, the fact that it is a registered document by itself would prove its genuineness. However, courts have repeatedly held that simply because a will is a registered document does not by itself prove its authenticity. Persons who have been named as beneficiaries under a will must keep in mind that registration of a will does not dispense with the need of proving its due execution and attestation in the manner provided under the Indian Evidence Act, 1872. Hence, a registered will can certainly be challenged if there is something suspicious about it.
The author is senior partner at Zeus Law, a corporate commercial law firm. One of its areas of specialisation is real estate transactional and litigation work. If you have any queries, email us at htestates@ hindustantimes. com or ht@ zeus.firm.in