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

HT Estates - - HTESTATES - Sunil Tyagi

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@

Newspapers in English

Newspapers from India

© PressReader. All rights reserved.