The following are some of the grounds on which a will can be challenged under the provisions of the Indian Succession Act, 1925 in India:
- Fraud, Coercion or Undue Influence: Section 61 the Indian Succession Act, 1925 expressly states that a will which has been caused by fraud or coercion, or any importunity which takes away the free agency of the testator is void. Any will that has been made in the absence of free will of testator can be challenged. Kannammal Achi v. A.N. Narayanan Chettiar1 held that a will can be challenged on the grounds of undue influence, exercise of influence either by coercion or by fraud. Mere persuasion and importunity which do not unduly overbear the will of the testator would not be undue influence.
- Lack of testamentary capacity: Under Section
59 the Indian Succession Act, 1925, the
following would be incapacitated to make a valid will.
- Persons of unsound mind, not during their period of lucidity
- Deaf, dumb or blind persons, considering they are not aware of the consequences of the creation of a will
- Persons suffering from insanity, considering they are of an unsound mind
- Intoxicated or ill persons that are unaware of their actions
Testamentary capacity is not merely threatened by bad health as it necessitates conditions that essentially disables or impairs the testator from making sound and conscious decisions.2
- Lack of due execution: As per Section 63 the Indian Succession Act, 1925, a will must be made by the testator and duly signed by them, along with the signature of two witnesses, in the presence of the testator, witnessing that the will belongs to them. If any of these is not present, there is a lack of due execution in the will and the same can be challenged in the court of law, according to Sushila Devi v. Pandit Krishna Kumar3.
- If Suspicious Circumstances surround the Will: if any
suspicious circumstances or unusual features surround the execution
of a will, then it can be challenged in the court of law. According
to Indu Bala Bose and Ors. v. Manindra Chandra Bose and
suspicious circumstances may be as to the genuineness of the
signatures of the testator, the condition of the testator's
mind, the disposition made in the will being unnatural, improbable
or unfair in the light of relevant circumstances. Further,
Kavita Kamra v. Pamela Mehta5
held that the unreliability of the attesting witnesses, the
contradictions in their statements or if the major beneficiary
played an active and major role in the execution of a will which
would confer on them substantial benefit, it would give rise to
suspicious circumstances. Further situations on which a will can be
challenged due to its suspicious nature are:
- Unexplained, unusual and abnormal features pertaining to the will6
- Giving the property to someone who not remotely close to the testator7
- Purposeful exclusion of only child in the absence of any plausible reasons8
- Closeness of the attesting witness of the will with the propounder9.
The relevant consideration would be about the quality and nature of each of these factors and then, the cumulative effect and impact of all of them upon making of the will with free agency of the testator.
- Lack of testamentary intention: If the language and interpretation of the will does not align with the intention of the testator at the time of the death and does not truly represent the last wish and propositions of the testator, then it can be challenged before the court.10 If the will contains any element which shows that, any provision under it might be against the testamentary intention of the testator, then it can be declared invalid.
- Lack of knowledge and approval: H Venkatachala Iyengar v. BN Thimmajamma11 held that if a testator had no understanding of nature and effect of the dispositions in the will, then it cannot be executed. If any circumstances show that the testator could not have been aware of and understood the meaning, purport and effect of the contents of the will in question, then it can be declared invalid.12
- Forgery: A person aggrieved by a forged will can file a private criminal complaint to invalidate the will. Further the person who had committed the forgery can be prosecuted under Section 467 of the Indian Penal Code.
- Revocation: Section 62 the Indian Succession Act, 1925 provides for the revocation or alteration of a will during the lifetime of the testator. If after making the will, the testator destroyed the original or substitutes it with a latter will, then the will would have been considered to be revoked and liable to be challenged before the court, to the extent of its inconsistencies with the former will.
- Uncertainty: Section 89 the Indian Succession Act, 1925 states that a will without a certain object or subject would be invalid. If it suffers from vagueness and is not definite enough, then it would be void for the reason of uncertainty. This could be coupled with the element of suspicious circumstances, for e.g. any absurd or irrational terms with no clear beneficiary, ambiguity or confusion with respect to the intention declared by the testator in the will, etc.
- Void Bequests: A will containing the following bequests would
be declared void:
- To a person not alive at the testator's death (Section 112)
- To a person not in existence at testator's death subject to prior bequest (Section 113)
- Resulting in the vesting of the thing bequeathed may be delayed beyond the life-time of one or more persons living at the testator's death (Section 114)
- Impossibility of condition: Section 124 the Indian Succession Act, 1925 states that a contingent legacy can take effect only on the happening of that contingency. A contingent will, whose execution is dependent upon the happening of a specific event, condition, etc., in the absence of which the will would be declared inoperative. However, if the probability of the occurrence of the event is impossible, then it would be declared void under Section 126.
- Illegal or immoral condition: Any conditions of a will which are illegal or immoral can be declared void under Section 127 the Indian Succession Act, 1925. If these provisions are contrary to, forbidden by or defeats any provision of law or are opposed to public policy, then it would be declared invalid.
1 Kannammal Achi v. A.N. Narayanan Chettiar, (1970) 1 MLJ 252.
2 Judah v. Isoline Shrojbashini Rose, AIR 1945 PC 174.
3 Sushila Devi v. Pandit Krishna Kumar, AIR 1971 SC 2236.
4 Indu Bala Bose and Ors. vs. Manindra Chandra Bose and Ors. AIR 1982 SC 133.
5 Kavita Kanwar v. Pamela Mehta, AIR 2020 SC 2614.
6 Shivakumar v. Sharanabasappa, AIR 2020 SC 3102.
7 Sushila Devi v. Pandit Krishna Kumar, AIR 1971 SC 2236.
8 Ram Piari v. Bhagwant, AIR 1990 SC 1742.
9 Ramchandra Rambux v. Champabai and Ors., AIR 1965 SC 254.
10 Kavita Kanwar v. Pamela Mehta, AIR 2020 SC 2614.
11 H Venkatachala Iyengar v. BN Thimmajamma, AIR 1959 SC 443.
12 Kavita Kanwar v. Pamela Mehta, AIR 2020 SC 2614.
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