Execution and attestation of Will
A Will, as per Section 63 of the Indian Succession Act, 1925 (ISA), requires to be attested by two or more witnesses. Each of the witnesses must have either seen the testator sign or affix his mark to the Will, or give directions to someone to affix his signature in his presence, or get personal acknowledgement by the testator of such testator’s assent to the Will. Above all, each of the witnesses to the ‘Will’ should have signed the ‘Will’ in the presence of the testator.
Normally the propounder of the Will must show by cogent (and satisfactory) evidence that the ‘Will’ which the propounder relies on was signed by the testator, and that the testator was in sound disposing mind when he signed the ‘Will’, and that he understood the nature and effect of the disposition, and that he placed his signature on the Will of his own freewill (and accord), and that too without any force, coercion or undue influence of whatsoever nature.
Initial burden of proof lies on the propounder!
The initial burden of proof in each case lies upon the propounder of the Will. The propounder has to discharge it by satisfying the conscience of the court that the instrument propounded is the last and final Will of the testator and it was executed by the testator without any force, coercion or undue influence at all. But the burden of proving any sort of such fraud played upon the testator in obtaining the execution of the Will is on the other party (the respondent) who alleges it.
The propounder of will must initially prove 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.
An attesting witness must be examined!
The Section 68 of the IEA necessitates that a document, such as a Will, which is required by law to be attested shall not be used as evidence, until and unless, at least one attesting witness, if he be alive and capable of giving evidence, has been called in for the purpose of proving its execution.
A registered document, other than a Will, need not be proved by calling a witness, if it is a registered one. That relaxation is not applicable to a registered Will.
When the attesting witness is examined the document required by law to be attested can be used as evidence.
Presumption of 30 years old Will as duly executed/attested!
The Section 90 of the IEA imposes that where any document, purporting or proved to be 30 years old, is produced from any custody which the court considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in case of a document executed and attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
In other words, it means that a thirty years old Will would be presumed to be truly executed and attested until someone disproves it by rebuttal evidence.
Propounder must remove the suspicion!
Where the execution of a ‘Will’ is accompanied by suspicious circumstances, the propounder has to explain such circumstances and remove the suspicion of the court in a way satisfying its conscience. The presence of such suspicious circumstances makes the initial onus of proof heavier on the propounder of the ‘Will’. In cases where the circumstances surrounding the execution of the ‘Will’ are exciting to the court, the propounder must remove all legitimate suspicion before the document can be accepted as duly created ‘Will’ of the testator.
When the Will is allegedly shrouded in suspicion, its proof ceases to be a simple matter existing between the plaintiff and defendant but it becomes a question of the conscience of the court. Then the propounder of the Will has to offer cogent and convincing explanation of suspicious circumstances surrounding the making of Will so as to satisfy that Will was duly executed by the testator. If a Will is challenged as shrouded in suspicious circumstances, all legitimate doubts as to the suspicious circumstances have to be removed by cogent, satisfactory and sufficient evidence.
If the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, the court would be justified in making a finding in favour of the propounder.
Presumption of 30 years old documents not apply to a Will
In ‘Bharpur Singh v. Shamsher’ [(2009) 3 SCC 687], keeping in view of the peculiar facts and circumstances of the case, it was held by the Supreme Court that, a presumption regarding documents of 30 years old does not apply to a ‘Will’. It was held in the case that a ‘Will’ has to be proved in terms of Section 63 (c) of the ISA (which states about attestation) read with Section 68 of the IEA (which states about calling an attesting witness to the court for proving a will).
This decision was made by considering the peculiar facts and circumstances of the case alone and therefore does not apply to other cases in general.
What are the suspicious circumstances in a Will?
The suspicious circumstances surrounding the execution of the Will enlisted in the above said Bharpur Singh v. Shamsher case [(2009) 3 SCC 687] are as follows:
- The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
- The condition of the testator's mind may be very feeble and debilitated at the relevant time.
- 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.
- The dispositions may not appear to be the result of the testator's free will and mind.
- The propounder takes a prominent part in the execution of the Will.
- The testator used to sign blank papers.
- The Will did not see the light of the day for long.
- Incorrect recitals of essential facts.
The list is, however, an indicative, but not an exclusive one.
Suspicion-free Will of 30 years old needs no further proof
In proving the attestation of a Will the presumption under Section 90 of the IEA will extend to all requirements of proof under Section 68 of the IEA or Section 63 of ISA, if the Will is free from suspicion on the face of it and is produced from proper custody, says Kerala High court in a Regular Second Appeal. The Will would stand proved if there is no rebuttal evidence. The Will in question was a registered one.
Normally, a Will cannot be read in evidence unless one of the attesting witnesses alive is summoned to the court and the execution and attestation are proved. But in the case of a Will of more than thirty years it may not always be possible to comply with this requirement.
In the second regular appeal in this case, the High Court examined whether the requirement under Section 68 of the Evidence Act is to be complied with in proving an ancient Will of 30 years old which was brought up from proper custody. It also examined, whether it is permissible to draw presumption under Section 90 of IEA in proving its execution and in complying with the requirement under Section 63 of ISA. It further examined whether Section 90 of IEA will prevail over the requirement under Section 68 of IEA, as well. These were the substantial questions in the case.
The High Court held, “None of the sections brought under Chapter V commencing from Sections 61 to 90A will have any overriding effect over any other provision therein and as such the question whether Section 90 of the Evidence Act would prevail over Section 68 of the Act would not arise. But, the expression 'proved' as defined under Section 3 of the Act should be understood with the tools provided under Chapter V of the Act in proof of execution of a document and its contents. When a document is proved by any of the provisions under that Chapter, there is no necessity for insisting further proof or compliance of mandate under any other provisions therein. When a Will or Codicil is proved under Section 90 of the Evidence Act, there is no necessity to insist for further proof or the compliance of mandate under Section 68 of the Act”.
The High Court further states, “.....in the matter of an ancient Will or Codicil produced from proper custody, the presumption available under Section 90 of the Evidence Act would extend to all the requirements to be complied with under Section 63 of the Indian Succession Act. More specifically, there would be a presumption regarding compliance of mandate under clauses (a) to (c) to Section 63 of the Indian Succession Act in the matter of a Will or Codicil that the signature or mark was affixed by the testator or any other person on his behalf under his direction and in his presence and that attestation was done by two witnesses as mandated therein, besides the presumption that the testator or the person who had signed on his behalf by his signature or mark had intended to effectuate the writing as a Will. Unless the presumption is rebutted, everything mandated under Section 63 of the Indian Succession Act would stand established by the operation of the presumption available under Section 90 of the Evidence Act and the initial burden lies on the person who claims the Will as genuine would stand discharged. But at the same time, a mere production of a document of 30 years old from a proper custody would not itself permit the court to draw a presumption mechanically”.
The High Court also warns that the courts must exercise extreme caution and utmost circumspection in ensuring that the Will is wholly free from suspicion and is brought from proper custody while setting up the presumption under Section 90 of IEA.
When a Will is not surrounded in suspicious circumstances the presumption of Section 90 of IEA would apply to it and there is no need for proving it by bringing the attesting witness to the court for taking testimony, so long as the presumption remains not rebutted.
If the execution of the Will is dubiously shrouded in suspicious circumstances the presumption under Section 90 of the IEA would not squarely apply to it and then the Will would have to be proved as prescribed under Section 63 of IEA.
The author of this article, now with Thrissur Bar, can also be reached at email@example.com