In proving a will, the Supreme Court(SC) has issued eight guidelines in Shivakumar and Others v Sharanabasappa and Others ( AIR 2020 SC 3102) to be followed by the courts.
The principles have been reiterated in Susamma v Smitha Thomas (Citation : 2024:KER:16811 / RSA No 574 of 2019 dated 1st March 2024) by the High Court of Kerala (HCK) and they are as follows:-
- “1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.
- Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
- The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will.
- The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
- If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion etcetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
- A circumstance is “suspicious” when it is not normal or is `not normally expected to a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be `real, germane and valid’ and not merely the `fantasy of the doubting mind.’
- As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature is feeble or uncertain mind of the testator, and unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependents; an active or leading part in making of the Will by the beneficiary thereunder etcetera are some of the circumstances which may give rise to suspicion. The circumstances above noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
- The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?”
Further reading
- SC judgement in Bharpur Singh & Ors. v Shamsher Singh [(2009) 3 SCC 687] regarding suspicious circumstances surrounding the execution of the Will
- HCK judgement in Joseph v Ippunny [2007 (4) KLT 853], regarding suspicious circumstances
