age factor for "will"

Doctor's cert.of soundness of mind and health will avoid future problems of suspicious circumstances.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Indian Succession Act

Section 59 : Person capable of making wills.-

Every person of sound mind not being a minor may dispose of his property by will.

Explanation 1. — A married woman may dispose by will of any property which she could alienate by her own act during her life.

Explanation 2. -- Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.

Explanation 3. -- A person who is ordinarily insane may make a will during interval in which he is of sound mind.

Explanation 4. -- No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.

Illustrations

(i) A can perceive what is going on in his immediate neighborhood, and can answer familiar questions, but has not a competent understanding as to the nature of his property, or the persons who are of kindred to him, or in whose favour it would be proper that he should make his will. A cannot make a valid will.

(ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid will.

1. Subs. by Act 3 of 1951, s. 3 and Sch., for" the States".

(iii) A, being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property, makes a will. This is a valid will.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

In the above section, the existence of a sound mind is a sine quo non for the validity of the Will. Most of the Wills are not made by young persons who are fully fit but are made by persons who are aged and bed ridden.  Hence, law does not expect that the testator should be in a perfect state of health, or that he should be able to give complicated instructions as to how his property was to be distributed. A sound disposing mind implies sufficient capacity to deal with and understand the disposition of property in his Will -

1)     the testator must understand that he is giving away his property to one or more objects;

2)     he must understand and recollect the extent of his property;

3)     he must also understand the persons and the extent of claims included as well as those who are excluded from the Will.

Byles J., while addressing Jury in Swinfen v. Swinlen, (1858) I75 ER 862 (F) at page 856 summarised the law relating to the testamentary capacity of disposition of a person making the Will in the following words :

"To constitute a good testamentary disposition, the testator must retain a degree of understanding to comprehend what he is doing -- to have a volition, or power of choice, so that what he does really be his own doing, and not the doing of anybody else.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Indian Succession Act

Section 63 Execution of unprivileged wills.-

Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1[ or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:--

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Dear Sir, in one of the Judgment {Net Ram Pal Through His Lrs'' Smt. ... vs State And Ors. on 25 March, 2008} attached  in below file, it is held that in Para 16 on page No:3:

16. The evidence of the objectors has established that the testator was aged 90 years when the document was created. The fact that the creator of the document went to a doctor for a certification that the testator was in a sound mind itself is evidence to show that even the propounded was conscious that an issue pertaining to the mental health or the physical health of the testator could be raised and therefore managed to obtain an endorsement from a doctor whose testimony has been found to be of no creditworthiness.

In another Case {H. Venkatachala Iyengar vs B. N. Thimmajamma & Others on 13 November, 1958} Supreme Court has elaborated the nature, standards and requirement for proving a will. Judgment is attached in the below file.

Head Notes:

The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by s. 63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus.

Where, however, there are suspicious circumstances, the onus would be on the propounder to explain them to the satis- faction of the Court before the will can be accepted as genuine. If the caveator alleges undue influence, fraud or coercion the onus will be on him to prove the same. Where there are no such pleas but the circumstances give rise to such doubts, it is for the propounder to satisfy the conscience of the Court.

What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If the propounder takes a prominent part in the execution of the will which confers substantial benefits on him, that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the court should proceed with an open but nevertheless vigilant and cautious mind.

ATTESTATION AND ENDORSEMENT BY DOCTOR ON THE WILL ABOUT THE "SOUND MIND AND MENTAL HEALTH, CREATED DOUBTS BEFORE THE COURT AND IN THE MIND OF COURT JUDGE IN ABOVE ACASE OF DELHI HIGH CPURT.   

Thank You Sir