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Unfair disposition or unjust exclusion of legal heirs in a will can be regarded as a suspicious circumstance

Unfair disposition or unjust exclusion of legal heirs in a will can be regarded as a suspicious circumstance

Kavita Kanwar Vs Pamela Mehta

Supreme Court



About/from the judgment:

The Supreme Court has observed that an unfair disposition of property or an unjust exclusion of the legal heirs, particularly the dependants, is regarded as a suspicious circumstance.

In this case, the Trial Court and the High Court noted that the following were the unexplained suspicious circumstances about the Will in question in a probate proceedings initiated by a woman who claimed that it was executed by her mother: (a) that she, the major beneficiary, played an active role in execution of the Will in question and attempted to conceal this fact before the Court; (b) that there had not been any plausible reason for non-inclusion of the only son and other daughter of the testatrix in the process of execution of the Will and for excluding them from the major part of the estate in question; (c) that there was no clarity about the construction supposed to be carried out by her; (d) that the manner of writing and execution of the Will with technical and legal words was highly doubtful; and (e) that the attesting witnesses were unreliable and there were contradictions in the statements of the witnesses.

In appeal, the Apex Court observed that, these circumstances taken into account by the Trial Court and the High Court, by itself and standing alone, cannot operate against the validity of the propounded Will. It said:

"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 testatrix. In other words, an individual factor may not be decisive but, if after taking all the factors together, conscience of the Court is not satisfied that the Will in question truly represents the last wish and propositions of the testator, the Will cannot get the approval of the Court; and, other way round, if on a holistic view of the matter, the Court feels satisfied that the document propounded as Will indeed signifies the last free wish and desire of the testator and is duly executed in accordance with law, the Will shall not be disapproved merely for one doubtful circumstance here or another factor there. "

The court then examined each of these circumstances in quite detail. It particularly noted the unequal distribution of assets by the Testatrix by giving major share to the daughter in preference to her other two children (one of them was her widowed daughter). It said:

"In the ordinary and natural course, a person could be expected to be more inclined towards the child taking his/her care; and it would be too unrealistic to assume that special love and affection towards one, maybe blue-eyed, child would also result in a person leaving the serving and needy child in lurch. As noticed, an unfair disposition of property or an unjust exclusion of the legal heirs, particularly the dependants, is regarded as a suspicious circumstance."

The court also noted that there was no reason given as to why the testatrix would have thought it proper to leave her widowed daughter in the heap of uncertainty. The Court also said that the contention taken that the testratix relationship with her son was strained is unsupported by any evidence. The court added that this unexplained unequal distribution of the property is confounded by two other factors: The active role played by the appellant in the process; and second, the virtual exclusion of the other children of the testatrix in the process.

The Will in question was claimed to be a Holographic Will, where the contents relating to the particulars of the person and bequeath, in the opening and concluding passages, are duly written in her own hand by the testatrix. But the Court noted, except for the opening and concluding passages, the entire Will is in electronic print, and therefore it does not directly answer to the description of a "holograph" Will.

The court also examined the other circumstances and concluded that the Will in question is surrounded by various suspicious circumstances which are material in nature and which have gone unexplained. The Appeal was therefore dismissed with costs of Rs. 50,000.

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