What is a Suspicious Will?
Movies and books have used the angle of Wills— missing, suspicious or fraudulent to often add an interesting twist to a tale. But the truth is often stranger than fiction and the Courts are full of stories of conniving relatives, greedy siblings and morally corrupt proceedings.
Do suspicious Wills really get detected?
Yes if there is strong enough ‘will’ to detect them! Time and again courts have ruled against Wills that are deemed to have suspicious circumstances.
What is a suspicious Will?
Indian law is very clear about the essentials of a valid Will. These include
- testator’s capacity to execute a Will,
- his/her clarity regarding inheritance under the Will,
- and witnesses to the Will.
However, in some cases, a correctly made Will, with a sign and witnesses is not enough if it does not represent the correct emotions of the testator ‘at the time of writing.’ If it doesn’t represent the right sentiments then a Will can be held to be suspicious.
What happens during Probate?
Probate is a legal process in which the validity and authenticity of a Will are determined. When a person dies, the court appoints an executor named in the person’s Will or an administrator to administer the process of probate.
Probate proceedings typically focus on the existence, authenticity, and validity of a Will. In India, probates are mandatory for cities of Mumbai, Kolkata & Chennai.
Who can challenge a Will?
The Court allows only people with ‘caveatable intent’ to challenge a Will.
Who all can have a ‘caveatable intent’ in the Will?
There are many views given by courts on the interpretation of the term ‘caveatable intent’. Yet, the common understanding is that anyone with even the slightest interest in the estate of the testator (the writer of the Will), or anyone whose rights will get prejudiced by the grant of probate, is considered to have a caveatable interest.
Who has to prove the authenticity of a Will?
In the case of suspicious circumstances e.g. undue influence, fraud or coercion, the onus of proving the Will’s authenticity falls on the propounder (often the beneficiary) of the Will.
In some cases, even if the Will is not challenged but circumstances give rise to doubts, then the onus of satisfying the Court’s suspicions lies on the executor of the Will.
The Kavita Kanwar case is a useful indicator of aspects considered by Courts while deciding upon the validity of a Will.
Let’s look at this interesting case:
Mrs Amarjeet Mamik had a house in Defence Colony, New Delhi. The ground floor of this house was already gifted to her elder daughter, Kavita Kanwar by Mrs Mamik’s deceased husband, Lt. Col. D.S. Mamik, in his last Will. The remainder of the property— which was a house on the first floor and the terrace was bequeathed to Mrs Mamik.
During the case, the court was presented with a Will made by Mrs Amarjeet Mamik on May 20, 2003. According to that Will, her elder daughter Kavita Kanwar was again a major beneficiary, and also the executor of the Will.
Her younger daughter, Pamela Mehta on the other hand who was a widow and had been living on the first floor of the house got an insufficient benefit. The strange fact was that Pamela Mehta was her mother’s primary caregiver and there was no fall-out between them.
Adding to the suspicions of the Court was the fact that even her son, who enjoyed good relations with his mother, was only given the meagre balance in her bank account.
- Kavita Kanwar was the major beneficiary
- Kavita Kanwar also played an active role in the execution of the Will, which she attempted to conceal before the Court.
- There was no concrete reason for the exclusion of her other children from the Will
- The Will included legal words which were highly unlikely to be known by Mrs Amarjeet Mamik
- Contradictory statements of the attesting witnesses
- There was no proof that Mrs Amarjeet Mamik understood the contents of the Will.
Due to these suspicious circumstances, probate was denied in the Trial Court. This case finally made it to the Supreme Court and again the Court considered the Will suspicious.
How do Courts define ‘suspicious Wills’?
In the case of a Will, the Courts expect the propounder to show by satisfactory evidence that the Will was
- signed by the person who created the Will (testator),
- the testator at the relevant time was in a sound and disposing state of mind,
- the testator understood the nature and effect of the dispositions,
- the testator has put his signature on the document of his own free will.
What is a suspicious circumstance?
Any circumstance that is not “normally expected in a normal situation” may be considered a suspicious circumstance. Claims disputing the validity of a Will due to suspicious circumstances can be brought before the courts if a person with “caveatable interest” has reason to believe that the circumstances led to the creation of an invalid will. The fact that there were suspicious circumstances during the will-writing process is not enough to successfully challenge a will – the circumstance in question has to have impacted the will-writing process enough to establish that the will does not accurately express the wishes of the will-maker. Circumstances like:
- a shaky and doubtful signature,
- a feeble or uncertain mind of the testator,
- unfair disposition of property,
- unjust exclusion of legal heirs,
- witnesses are related to the main beneficiary,
- and the active involvement of the main beneficiary in the execution of the Will
Prevention is Better Than Cure
As estate planners, we often hear of cases with suspicious circumstances. It is a tedious and time-consuming process for anyone to go through, thus as a preventive measure, we always advise clients who plan to write their Will to:
- exercise necessary caution and
- write it in a way that no one can challenge their Will on “suspicious grounds”
Detecting the problems in this stage is so much easier and more efficient not only for the testator but also for the family/beneficiaries. Of course, we also get clients who want to challenge a Will based on suspicious circumstances. In such cases, we first evaluate the Will to assess if there are enough grounds to challenge it and advise our client accordingly.
Every case is different and needs customised advice. If you are looking for advice on how to make the terms of your Will more iron-clad or checking if a Will has enough suspicious circumstances to be challenged in court, send an email to us at
shailendrad@planmyestate.in and our team of experts will tell you what exactly needs to be done.