Introduction Consider this. A person makes a Will thinking he
has done all that is necessary for ensuring smooth succession of his
assets to his near and dear ones. Unfortunately, he dies. But even more
unfortunately, his Will is held to be invalid! Result – he is rendered
an intestate, i.e. one who died without making a valid Will and
accordingly, the law decides who gets what after his death. This could
have some unintended and unpleasant consequences. Through this Article,
let us, through Questions and Answers, consider some of those scenarios
when a deceased’s Will can and cannot be held to be invalid. The Indian
Succession Act, 1925 governs the law relating to the making and proving
of Wills.
Can a Person with Alzheimer’s disease make a Will? Alzheimer’s
disease affects the mental capacity of a person. It is a degeneration
of the mental faculties and leads to memory loss, inability to think,
etc. In an advanced stage of the disease, it is highly doubtful whether a
person has control over his mental faculties in order to make a Will.
However, if a person suffering from Alzheimer’s disease is in a position
to make a Will, then it would be advisable to have a neurologist (and
not any doctor) who has been treating the person to certify the
testator’s mental state of mind to execute the Will. He could act as the
witness to the Will. This would add credence to the Will and the doctor
could even be examined before a Probate Court.
Similarly, in
the case of a schizophrenic, it may be advisable to have the consulting
psychiatrist certify the ability of the testator to prepare a Will at
the time of execution of the Will.
Can a Person suffering from Parkinson’s disease make a Will? Parkinson’s
disease is also a degeneration of the brain but it affects the
movements of a person. Hence, the mental faculties of such a person may
remain intact as compared to a person suffering from Alzheimer’s
disease. Nevertheless, even in the case of such a person, it may be a
good idea to have a neurologist to certify the testator’s mental state
of mind to execute the Will, since it may be challenged in the Probate
Court whether such a person had control over his thinking ability? In
Maki Sorabji Commissariat vs. Homi Sorabji Commissariat, TS No. 60/2011
Order dated 30th April, 2014, the Bombay High Court was faced with the
very same issue as to whether the testator who was suffering from
Parkinson’s disease could make a Will? The Court held that even if the
deceased was suffering from Parkinson’s disease, the question that arose
was whether such disease could have affected sound and disposing mind
of the deceased at the time of execution of the Will? The Court held
that facts clearly indicated that he was active in various activities
including taking decisions in property matters. Thus, the Court held
that merely because he suffered from Parkinson’s disease, it would not
indicate or prove that it had affected his sound and disposing mind or
capacity to execute a Will. Unless the disease was of such a nature that
it would affect the sound and disposing mind of the testator, such
disease cannot be a ground to refuse a Probate.
Can a very old person make a Will? Unlike
the Companies Act, 2013 which raises a question mark on a person over
the age of 70 to become a Managing Director, a Will of a very old person
is valid, provided he knows what he is doing. However, if the old age
has rendered him senile or forgetful or mentally feeble, then the Will
would be held to be invalid on account of the testator’s mental
capacity. As suggested before, a neurologist should certify the
testator’s mental state of mind which should specifically refer to his
extreme old age.
Can a person suffering from terminal illness make a Will? In
Pratap Singh vs. State, 157 (2009) DLT 731, the Delhi High Court held
that the fact that a person was suffering from a very painful form of
terminal cancer of the mouth which prevented him from speaking and that
he succumbed to it within 2 weeks of executing a Will showed that he may
not have prepared the Will. Hence, in cases of terminal illness, it
becomes very important to prove how the testator could have prepared the
Will. The role of the witnesses in such cases also becomes very
important.
What if all pages of a Will are not signed? The
Indian Succession Act, 1925 requires that a testator shall so sign a
Will that it appears that he intended to execute it. Thus, it need not
necessarily be at the end of the Will, it can also be at the beginning
of the Will. The key is that it should appear that he intended to give
effect to the Will. There is no requirement that each and every page
must be signed or initialled – Ammu Balachandran vs. Mrs. O.T. Joseph
(Died) AIR 1996 Mad 442 which was followed again in Janaki Devi vs. R.
Vasanthi (2005) 1 MLJ 357. Nevertheless, it goes without saying that for
personal safety, the testator must sign each and every page so that
there is no risk of pages being replaced.
Can a witness to a Will also be a Beneficiary under the Will? Generally,
no. The Indian Succession Act states that any bequest (gift) to a
witness of a Will is void. However, the Will is not deemed to be
insufficiently attested for this reason alone. Thus, he who certifies
the signing of the Will should not be getting a bequest from the
testator. However, there is a twist to this section.
This
section does not apply to Wills made by Hindus, Sikhs, Jains and
Buddhists and hence, bequests made under their Wills to attesting
witnesses would be valid! Wills by Muslims are governed by their
Shariyat Law. Thus, the prohibition on gifts to witnesses applies only
to Wills made by Christians, Parsis, Jews, etc.
Does a witness need to know the contents of the Will? This
is one of the biggest fears and myths in selecting a witness. A witness
only witnesses the signing of the Will by the testator and nothing
more! He or she need not know what is inside the Will and the contents
can very well be kept a secret till when it is opened after the death of
the testator. By signing as a witness, he only states that the testator
has actually signed the Will in his presence.
Can an executor be a beneficiary under the Will? Yes,
he can, subject to certain conditions. He must either prove the Will or
at least manifest an intention to act as the executor. Thus, he must do
some act which would demonstrate his intention to act as the executor.
These acts could include, arranging for the funeral of the testator,
taking stock of his estate, writing letters to the other legatees,
arranging for religious rites, etc.
Can an executor be a witness under the Will? Yes,
he can. An executor is the person who sets the Will in motion. It is
the executor through whom the deceased’s Will works. Just as a company
operates through its Board of Directors, the estate of a deceased
operates through its executors. There is no bar for a person to be both
an executor of a Will and a witness of the very same Will. In fact, the
Indian Succession Act, 1925 expressly provides for the same.
Does a bachelor/spinster need to make a new Will once he/she marries? Yes, he can. An executor is the person who sets the Will in motion. It is the executor through whom the deceased’s Will works. Just as a company operates through its Board of Directors, the estate of a deceased operates through its executors. There is no bar for a person to be both an executor of a Will and a witness of the very same Will. In fact, the Indian Succession Act, 1925 expressly provides for the same. Does a bachelor/spinster need to make a new Will once he/she marries?
Yes. The law considers marriage as a major event in a person’s life and one which requires him/her to rethink the succession plan. Thus, any Will made prior to marriage is automatically revoked by law, on the marriage of a person. If a person dies without making a fresh Will after marriage, then he/she would be treated as dying intestate and the provisions of the relevant succession law, e.g., the Hindu Succession Act, 1956 for Hindus, would apply.
Can a Will have a generic bequest?
Bequests can be general or specific. However, they cannot be so generic that the meaning itself is unascertainable. For instance, a Will may state “I leave all my money to my wife”. This is a generic bequest which is valid since it is possible to quantify what is bequeathed. However, if the same Will states “I leave money to my wife”, then it is not possible to ascertain how much money is bequeathed. In such an event, the entire Will is void.
What happens if the shares bequeathed undergo a merger/ demerger?
Say a Will bequeaths 1,000 shares of ABC Ltd. After the Will is prepared and before the shares are bequeathed, ABC. Ltd undergoes a scheme of arrangement pursuant to which ABC Ltd is merged with XYZ Ltd and one division of the erstwhile ABC Ltd is hived off into PQR Ltd. The original ABC shares are replaced with shares of XYZ and PQR. Would the legacy survive such a change?
The Indian Succession Act provides that where a thing specifically bequeathed undergoes a change between the date of the Will and the testator’s death and the change occurs by operation of law/in the course of execution of the provisions of any legal instrument under which the thing bequeathed was held, the legacy is not adeemed (cancelled) by reason of such a change.
The position in this respect is not explicitly clear. However, one may refer to some English and American judgments on this issue. The judgments tend to suggest that whenever a specific item bequeathed has ceased to belong to the testator, the legacy is adeemed – Bridle 4 CPD 336. A legacy is not adeemed if the alteration/change is only formal or nominal – such as a name change/sub-division of shares – Oakes vs. Oakes 9 Hare 666/Clifford (1912) 1 Ch 29. Even in a case where the reorganised company was materially the same as the old one, there was no ademption – Leeming (1912) 1 Ch 828. However, where the gift is substantially altered, there is an ademption. The testator must have at the time of his death the same thing existing; it may be in a different shape, yet it must substantially be the same thing – Slater (1907) 1 Ch 665 / Gray 36 Ch D 205.
Hence, in the example given above, it may be possible to contend, relying upon Slater’s decision, that the gift has been substantially altered on account of the reorganisation and hence, a view may be taken that the legacy adeems. However, as mentioned earlier, this is an issue which is not free from doubt. It may be noted that on ademption of a legacy, the entire Will may or may not become void. For instance, if a legacy adeems and there is an alternative beneficiary, then it would go to him. However, if there is only one beneficiary to whom the entire estate goes without any alternative beneficiary, then on ademption of the legacy, the Will may itself fail. Hence, this is a question of fact to be decided on a case-by-case basis.
Would a bequest to children of the testator include his adopted children, if not so specified?
Section 99 of the Indian Succession Act defines certain terms used in a Will. The words children means only the lineal descendants in the first degree of the testator. Thus, according to this section, adopted children would not be included in the definition of the term ‘children’ if so used in a Will. Similarly, a step-child would also not be included since that would not constitute a lineal descendant. However, it should be noted that this section does not apply to Wills made by Hindus, Sikhs, Jains and Buddhists and hence, if a Will made by them uses the term “children,” then it would include their adopted children also. Similarly, their step-children may also be included.
Conclusion
While the above are just some of the scenarios when a Will may be held to be invalid, one must bear in mind that a little care and caution and at times, sound legal advice, would go a long way in perfecting a Will. Act in haste and repent in leisure is often the case with several testamentary documents. Always remember:
“Where there’s an invalid Will, there’s a Dispute Where there’s an invalid Will, there’s a Lawsuit!!”
