Introduction

In Kavita Kanwar v Mrs Pamela Mehta, the Supreme Court discussed at length certain key factors that may constitute suspicious circumstances and render a will invalid.

While drafting a will may prompt feelings of discomfort, it is a key element of estate planning. Drafting a will ensures that the testatrix's or testator's wishes regarding the distribution of their assets are met and provides a sense of security. Thus, the advantages of drafting a will outweigh any temporary discomfort caused by the process.

Indian law is clear about the requirements of a valid will. These include:

  • the testator's capacity to execute the will;
  • clarity in relation to inheritance under the will; and
  • the presence of witnesses to the will's execution.

In some cases, a will may be challenged on the ground of suspicious circumstances. The case of Kavita Kanwar is a useful indicator of the elements which the courts may consider when deciding the validity of such a will.

Facts

The case concerned the will of Amarjeet Mamik (the testatrix), which was dated 20 May 2003. As per the will, the testatrix's primary asset was her home in Defence Colony, New Delhi. The ground floor of the property had been gifted to Kavita Kanwar by Lieutenant Colonel DS Mamik prior to his passing. After his passing, the remainder of the property was bequeathed to the testatrix.

Kanwar was not only the major beneficiary of the testatrix's will, but also its executor. The widowed daughter of the testatrix and her primary caregiver, Pamela Mehta, who lived on the first floor of the testatrix's house with her daughter, received no considerable bequest. Further, the testatrix's son – who had stayed away from the testatrix due to his engagement in the Indian army, but maintained a good relationship with her – received only the balance in the testatrix's bank account (approximately Rs576,000).

Figure 1: family structure

Probate proceedings

Kanwar, being the executor of the will, filed for probate in the Trial Court. The court refused, citing various mysterious circumstances surrounding the will's execution. An appeal was filed in the Delhi High Court, which also found that unexplained circumstances surrounded the will's execution. Thereafter, Kanwar filed a special leave petition with the Supreme Court, which affirmed the findings of the Trial Court and the Delhi High Court.

Supreme Court decision

At the outset of its decision, the Supreme Court stated that a will must be proved like any other document. In this respect, the court expects the executor to provide satisfactory evidence that the testatrix:

  • signed the will of their own free will;
  • was of sound and disposing mind when making the will; and
  • understood the nature and effect of the dispositions.

Relying on various judgments, the court observed that any circumstance that is not "normally expected in a normal situation" may be considered 'suspicious'. These include:

  • a shaky or doubtful signature;
  • the testatrix being of feeble or uncertain mind;
  • the unfair disposition of property;
  • the unjust exclusion of legal heirs; and
  • the active involvement of the major beneficiary in the will's execution.

The Supreme Court reiterated the law and stated that the analysis of suspicious circumstances should be holistic and will entail considering all unusual circumstances. Further, the court found that even in the absence of a challenge to a will, the existence of suspicious circumstances may give rise to doubts that the testator executed the will of their own free will.

In relation to the will in question, the Supreme Court found that several circumstances surrounding its execution were suspicious in nature, including as follows:

  • Kanwar was the major beneficiary and had played an active role in the will's execution, which she attempted to conceal before the court.
  • There was no plausible reason why the testatrix's other children had not been involved in the execution process or received a major part of the estate.
  • The will had been written and executed using technical and legal words, and it was doubtful whether the testatrix had understood these.
  • The will was allegedly missing a third page.
  • Attesting witnesses had made contradictory statements.
  • The bequest under the will was illusionary and inoperable.
  • There was no proof that the testatrix had understood the will's contents.

The Supreme Court concluded that the existence of one of the above circumstances would not generally lead to a conclusion of suspicious circumstances. However, when taken holistically, it was beyond doubt that suspicious circumstances existed.

Key takeaways

If a will is held to be invalid, the property of the testatrix or testator devolves intestate. While there have been cases in which individuals have not executed wills of their own free will, there have also been cases in which legal heirs have challenged the validity of a duly executed will. In order to avoid such a scenario, the following precautionary measures may be taken:

  • Executing a will in line with the legal requirements is the first necessary step to ensure that it is not challenged.
  • Challenges often arise based on the testator's mental capability at the time of executing the will. Testators should consider acquiring proof of competency from a medical practitioner prior to executing a will. In order to remove doubt, they could also consider videoing the execution process.
  • A key takeaway from the Kavita Kanwar case is that attesting witnesses must be reliable and should preferably be known to the testator. The courts will also consider the relationship between the testator and the attesting witnesses compared with the relationship between the major beneficiary and the attesting witness in deciding whether suspicious circumstances exist.
  • While wills need not be registered, it may be helpful in proving a will's genuineness and further reduces the chances of a challenge. Although it has been held that the mere exclusion of an heir alone is not a suspicious circumstance, when combined with other circumstances, the courts may view this as suspicious. Hence, it may be prudent to register wills which bequeath property to someone other than a natural heir or relative.

Wills come into effect on the testator's passing. Therefore, a probate court, while deciding a solemn matter, must be satisfied that the will was validly executed by the testator. In accordance with the Succession Act 1925, in the case of patent ambiguity or deficiency in the will, no extrinsic evidence will be considered and the court will rely only on the will to decide its validity.

The execution of a will is an important step in ensuring how an individual's estate will devolve on their passing. As such, the above safeguards should be kept in mind when preparing a will.