The Supreme Court in the case of Kavita Kanwar v. Mrs. Pamela Mehta (“Kavita Kanwar case”), has extensively discussed certain key factors that may render a will surrounded by suspicious circumstances as invalid.
While drafting, a will may bring up feelings of discomfort, it is one of the key elements of estate planning and ensures that the testator’s wishes for distribution of his or her assets is met. Additionally, it brings about a sense of security in the testator in relation to their assets, and when considered, the advantages of drafting a will, outweigh the temporary discomfort caused by the process.
Indian law is very clear with regard to the essentials of a valid will. These include the testator’s capacity to execute a will, clarity in relation to inheritance under the will, and witnesses to the will. However, in some cases, a will may be challenged on the ground that its execution is surrounded by suspicious circumstances. The Kavita Kanwar case is a useful indicator of aspects considered by courts while deciding upon the validity of such a will. The facts of the case are as follows:
Family structure & the Will:
The Supreme Court analysed the validity of Mrs. Amarjeet Mamik’s Will, dated May 20, 2003. As per the Will, the primary asset of the Testatrix was her home in Defence Colony, New Delhi. The ground floor of the said property was gifted to Kavita Kanwar by Lt. Col. D.S. Mamik prior to his passing, subsequent to which the remainder of the property was bequeathed to the Testatrix.
As per the Will, Kavita Kanwar was not only the major beneficiary, but also its executor. While Pamela Mehta, the widowed daughter of Testatrix and her primary caregiver, who lived on the first floor of the Testatrix’s house along with her daughter, did not receive any considerable bequest. Further, the Testatrix’s son, who due to his engagement with the Indian Army stayed away from the Testatrix, but maintained good relations with her, was only given the balance in the Testatrix’s bank account, amounting to approximately Rs 5.76 lakh.
Kavita Kanwar, being the executor of the Will, filed for probate in the Trial Court, which was refused as the Court found various mysterious circumstances surrounding the execution of the Will. An appeal was preferred in the High Court of Delhi by Kavita Kanwar, where the Delhi High Court again found the Will to be surrounded by unexplained circumstances. Thereafter, Kavita Kanwar approached the Supreme Court by way of a Special Leave Petition, where the Supreme Court affirmed the findings of the Trial Court and the Delhi High Court.
Key Findings of the Supreme Court:
The Supreme Court, at the outset, stated that a will has to be proved like any other document. However, the Court will expect the executor to show by satisfactory evidence that the will was (i) signed by the testator, (ii) the testator at the relevant time was in a sound and disposing state of mind, (iii) the testator understood the nature and effect of the dispositions, and (iv) the testator has put his signature on the document of his own free will.
The Court relying on various judgments, observed that when it comes to a ‘suspicious circumstance’, any circumstance that is not “normally expected in a normal situation” may be considered as a suspicious circumstance. Certain elements, such as, a shaky and doubtful signature, a feeble or uncertain mind of the testator, unfair disposition of property, unjust exclusion of legal heirs, and the active involvement of the major beneficiary in the execution of the will, are indications of suspicious circumstances. Further, the Supreme Court reiterated that an important element to keep in mind is that the analysis with regard to whether suspicious circumstances surround a will is to be done on the basis of a holistic view of the matter and consideration to all the unusual circumstances. Moreover, the Court found that even in the absence of a plea or contest to a will, the very existence of suspicious circumstances may give rise to a doubt that the will has not been executed by the testator of his free will.
In relation to the Will in question, the Supreme Court found several circumstances around the Will, which were suspicious in nature, such as:
- Kavita Kanwar was the major beneficiary and played an active role in the execution of the Will, which she attempted to conceal before the Court.
- There was no plausible reason for non-inclusion of the other children of the Testatrix in the execution process of the Will and major part of the estate.
- The manner of writing and execution of the Will with technical and legal words was highly doubtful.
- Existence of an alleged third page of the Will.
- Contradictory statements of attesting witnesses.
- The bequest under the Will was illusionary and inoperable.
- There was no proof that the Testatrix understood the contents of the Will.
Considering the same, the Supreme Court concluded that the existence of one of the above mentioned circumstances, would not generally lead the Court to conclude that suspicious circumstances surround the Will, however, looking at the same holistically, it is beyond doubt that suspicious circumstances do surround the Will.
Upon a will being held invalid, the property of the testator devolves intestate. While there are certain cases wherein the will in question is not executed out of the free will of an individual, there are also cases where legal heirs challenge the validity of a duly executed will. In order to avoid such a scenario, one may take precautionary measures, such as:
- Executing the will in line with legal requirements is the first necessary step one must take to ensure that there is no subsequent challenge to the same.
- Often, we see challenges on the ground of mental capability of the testator at the time of executing the will. One may consider acquiring a proof of competency by a medical practitioner prior to executing the will. Moreover, in order to remove doubts, one may also consider video-recording the execution process.
- A key takeaway from the Kavita Kanwar case is that attesting witnesses must be reliable and preferably known to the testator. Additionally, the relationship shared between the testator and the attesting witnesses vis-à-vis the relationship shared between the major beneficiary and the attesting witness is also a consideration for the courts in deciding whether suspicious circumstances surround a will.
- While wills do not have to be registered, registration of a will is helpful to prove its genuineness and to further reduce the chances of challenge. It has been held that the mere exclusion of an heir alone is not a suspicious circumstance, however, when clubbed with other circumstances, may incline the courts to consider the same as suspicious. Hence, it may be prudent for wills, which bequeath property to any person other than a natural heir or family relative, to be registered.
It is important to remember that a will comes into effect after the passing of the testator. Therefore, a probate court is deciding a solemn question, and it must be satisfied that the will has been validly executed by the testator, who is no longer alive. One must also keep in mind that as per the provisions of the Indian Succession Act, 1925, in the case of patent ambiguity or deficiency in the will, no extrinsic evidence will be relied upon. Therefore, the Court will only rely on the will to decide on its validity.
The execution of a will is an important step in ensuring how one’s legacy devolves after passing. Therefore, the above safeguards should be kept in mind while preparing the will.