INTRODUCTION
This feature has over the last 23 years covered the subject of Wills and its myriad issues many times. However, this is a topic which is always subject to interesting developments and many controversies and hence, we keep revisiting it time and again. Recently, the Supreme Court has had occasions to examine important facets pertaining to a Will. Let us examine these vital decisions and the propositions laid down by them.
EXCLUDING NEAR AND DEAR RELATIVES
Quite often we hear that a person has excluded his nearest relatives from his Will in favour of a stranger. This is absolutely possible in India and the answer to this lies in the legal system followed by India. There are two basic legal systems in International Law ~ Civil Law and Common Law. Certain Civil Law jurisdiction countries, such as, France, Italy, Germany, Switzerland, Spain, Japan, etc., have forced heirship rules. Forced Heirship means that a person does not have full freedom in selecting his beneficiaries under his Will. Certain close relatives must get a fixed share. Sharia Law is also an example of forced heirship rules. This is a feature which is not found in Common Law countries, such as, the UK and India. Thus, an Indian has full freedom to prepare his Will as per his wishes and bequeath to whomsoever he wishes. This issue has been elaborated eloquently by the Supreme Court in its decision in Krishna Kumar Birla vs. RS Lodha, (2008) 4 SCC 300 where it has held:
“Why an owner of the property executes a Will in favour of another is a matter of his/her choice. One may by a Will deprive his close family members including his sons and daughters. She had a right to do so. The court is concerned with the genuineness of the Will. If it is found to be valid, no further question as to why did she do so would be completely out of its domain. A Will may be executed even for the benefit of others including animals.”
Inspite of the above clear position, the question that often arises is whether any specific wordings are needed by a testator (i.e., the person who prepares the Will) to exclude his near and dear relationships and bequeath his estate to a stranger? On a lighter vein, once excluded the near would not remain so dear.
The Supreme Court considered this issue in the case of Gurdial Singh (Dead) vs. Jagir Kaur (Dead), CA (Nos.) 3509-3510/2010, Order dated 17th July 2025. A person while executing a Will did not make any bequest to his wife and instead preferred his nephew. The question before the Apex Court was faced with the question of whether, in the facts and circumstances of the case, the non-mention of the status wife of the testator in the Will was valid? Further, was the failure to give reasons for her disinheritance in the Will a suspicious circumstance which exposed a lack of a free disposing mind of the testator, thereby rendering the Will invalid? This question arose inspite of the Will being a registered one.
The Court laid down the basic legal framework in this aspect. A Will has to be proved like any other document subject to the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, that is examination of at least of one of the attesting witnesses. However, unlike other documents, when a Will is propounded, its maker is no longer in the land of living. This casts a solemn duty on the Court to ascertain whether the Will propounded had been duly proved. The onus was on the propounder (i.e., the person claiming that the Will was genuine) not only to prove due execution but dispel from the mind of the court, all suspicious circumstances which cast doubt on the free disposing mind of the testator. Only when the propounder dispelled the suspicious circumstances and satisfied the conscience of the court that the testator had duly executed the Will out of his free volition, without coercion or undue influence, would the Will be accepted as genuine. It relied on an earlier decision in Rani Purnima Devi vs. Kumar Khagendra Narayan Dev, AIR 1962 SC 567, which held that merely because the Will was registered and signatures were proved, the Will would not be treated as genuine if suspicious circumstances existed.
This led to the next relevant question as to what circumstances could be considered suspicious? In Indu Bala Bose vs. Manindra Chandra Bose, (1982) 1 SCC 20, the Court held that a circumstance would be “suspicious” when it is not normal , or it is not normally expected in a normal situation, or is not expected of a normal person. However, as held in PPK Gopalan Nambier vs. PPK Balakrishnan Nambiar, 1995 Supp (2) SCC 664, the suspicions must be real, germane and valid suspicious features and not a fantasy of the doubting mind.
The Apex Court then held that mere deprivation of a natural heir, by itself, may not amount to a suspicious circumstance because the whole idea behind the execution of the Will is to interfere with the normal line of succession. However, in Ram Piari vs. Bhagwant, (1993) 3 SCC 364, the Court held prudence requires reason for denying the benefit of inheritance to natural heirs and an absence of it, though not invalidating the Will in all cases, shrouds the disposition with suspicion as it does not give inkling to the mind of the testator to enable the court to judge that the disposition was a voluntary act.
Again, in Leela Rajagopal vs. Kamala Menon Cocharan, (2014) 15 SCC 570 the Court held that a Will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a Will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a Will or a singular circumstance that may appear from the process leading to its execution or registration.
Thus, it held that a suspicious circumstance, i.e. non-mention of the status of wife or the reason for her disinheritance in the Will ought not to be examined in insolation but in the light of all attending circumstances of the case. The Court examined crucial facts and held that when one read the contents of the Will, the nephew’s stand was stark and palpable in its tenor and purport. The Will was a cryptic one where the testator bequeathed his properties to his nephew as the latter was taking care of him. However, the Will was completely silent with regard to the existence of his own wife and natural heir or the reason for her disinheritance. Evidence on record showed that she was residing with the testator till the latter’s death. Nothing had come on record to show the relation between the couple was bitter. As per the widow, she was the nominee entitled to receive his pension. This showed his conduct in accepting her to be his lawfully wedded wife. The Lower Courts had erroneously held that she did not perform the last rites of her husband and hence, their relationship had soured. The Supreme Court held that normally in case of Hindus/Sikhs, male relations perform the last rites and thus, this observation of the Lower Courts was wrong.
In this backdrop, it could not be said that the testator had during his lifetime, denied his marriage with his wife or admitted that their relation was strained, so as to prompt him to erase her very existence in the Will. Such erasure of marital status was the tell-tale insignia of the propounder and not the testator himself. A cumulative assessment of the attending circumstances including this unusual omission to mention the very existence of his wife in the Will, gave rise to serious doubt that the Will was executed as per the dictates of the nephew and was not the free will of the testator. Accordingly, the Court held that the Will was not duly proved.
This judgment once again lays down a very vital principle, i.e., in cases where close relatives are excluded from the Will, the testator must give reasons for the same. Giving a background of the soured relationship or fact of having helped the relative earlier could be some explanations. Ultimately, the Will speaks from the grave of the testator when he is not alive so it should be self-explanatory and leave no doubts!
REGISTERED WILLS
The controversy over whether registered Wills are superior to unregistered ones continues. In Metpalli Lasum Bai vs. Metapalli Muthaih(D) by Lrs., CA(Nos.)5291,52922 of 2015, Order dated 21st July 2025, the testator executed a registered Will in favour of a relative of his based on which the beneficiary became entitled to a land parcel. The issue before the Court was whether this Will was valid. The Court held that the Will, was a registered document and thus there was a presumption regarding genuineness thereof. A trial Court accepted the execution of the Will based on the evidence led before it. As the Will was a registered document, the burden would lie on the party who disputed its existence thereof, who in this case would be defendant, to establish that it was not executed in the manner as alleged or that there were suspicious circumstances which made the same doubtful. However, the defendant himself in his evidence, admitted the signatures as appearing on the registered Will to be those of the testator. Accordingly, the Supreme Court upheld the genuineness of the Will.
However, it should be noted that a registered Will does not automatically become a valid Will. In case suspicious circumstances exist then even a registered Will can be disregarded. Another recent decision of the Supreme Court in the case of Leela and Ors vs. Muruganantham & Ors., 2025 AIR SC 230, has held that the legal position is well settled that mere registration of a Will would not attach to it a stamp of validity and it must still be proved in terms of the legal mandates under the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. It relied on an earlier decision in the case of Moturu Nalini Kanth vs. Gainedi Kaliprasad (Dead), through Lrs., 2023 SCC OnLine SC 1488, which held:
“Trite to state, mere registration of a Will does not attach to it a stamp of validity and it must still be proved in terms of the above legal mandate.”
A very old 3-Judge Supreme Court decision in the case of H. Venkatachala Iyengar vs. B. N. Thimmajamma & Others, 1959 AIR SC 443, has summed up the requirements of the validity of a Will very succinctly. It held that there was an important feature which distinguished Wills from other documents as, unlike other documents, a Will spoke from the grave of the testator and, therefore, when it was propounded or produced before a Court, the testator who had already departed from the world could not say whether it was his Will or not. It held that the onus on the propounder to prove the Will could be taken to be discharged on proof of the essential facts, such as, that the Will was signed by the testator; that the testator at the relevant time was in a sound and disposing state of mind; that he understood the nature and effect of the dispositions; and that he put his signature to the document of his own free will. It was, however, noted by the Bench that there might be cases in which the execution of the Will was surrounded by suspicious circumstances and the same would naturally tend to make the initial onus very heavy and unless it was satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator.
VALIDLY EXECUTED WILL NOT SAME AS GENUINE WILL
The Supreme Court in Lilian Coelho & Ors. vs. Myra Philomena Coalho, 2025 (2) SCC 633 laid down a very crucial principle, that a ‘Will is validly executed’ and a ‘Will is genuine’ cannot be said to be the same. If a Will was found not validly executed, in other words invalid owing to the failure to follow the prescribed procedures, then there would be no need to look into the question whether it is shrouded with suspicious circumstances. Therefore, it can be said that even after the propounder was able to establish that the Will was executed in accordance with the law, that will only lead to the presumption that it was validly executed but that by itself was no reason to canvass the position that it would amount to a finding with respect to the genuineness of the same. In other words, even after holding that a Will was genuine, it was within the jurisdiction of the Court to hold that it was not worthy to act upon as being shrouded with suspicious circumstances when the propounder failed to remove such suspicious circumstances to the satisfaction of the Court.
CAN’T APPROBATE AND REPROBATE
An interesting decision was rendered in the case of Bhagwat Sharan (Dead Thr.LRs) vs. Purushottam and Ors, 2020(6) SCC 387. In this case, a person who was a beneficiary under a Will accepted the bequest but contested that the description of the properties as given by the testator was incorrect. The Court held that it was trite law that a party cannot be permitted to approbate and reprobate at the same time. This principle was based on the principle of doctrine of election. In respect of Wills, this doctrine was held to mean that a person who took benefit of a portion of the Will could not challenge the remaining portion of the Will. The doctrine of election was a facet of law of estoppel. A party could not blow hot and blow cold at the same time. Any party which took advantage of any instrument must accept all that was mentioned in the said document.
EPILOGUE
The above decisions demonstrate that when it comes to Wills, there is no one-size-fits-all approach! Each decision is based on the way the Will is drafted, the peculiar facts and circumstances surrounding the testator and his estate, and an examination of evidence in relation to the Will. However, one common thread emanating from these and various other judgments is that when it comes to matters of drafting of Wills or for that matter any succession planning, due care and caution is the norm. It is always safer to err on the safer side since the person making the Will would not be around to explain his side of the story!
