Legal article on law relating to will

Introduction

The Indian Succession Act, 1925 defines a will as follows:

“Will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.”

In India, testamentary succession is governed by the Indian Succession Act, 1925. The Hindu Succession Act, 1956, gives a person the power to make a will or testament in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force.

The Indian Succession Act, 1925, lays down the right of a person owning property to dispose of the same according to his wishes in any manner he likes. It first lays down the conditions under which a person is legally allowed to make a will, i.e. the person making the will must be a major and must be of sound mind.

Yet, the court must not preclude the possibility of situations where the person who has made the will has not done so of his/her own free will. The court may suspect that the testator has not exercised his own mind while deciding the successors of his estate and properties. Some sort of pressure or influence has been used on him in making bequests, which he ordinarily would not have made. In Boyse v. Rossborough, Lord Cranworth said,

“Influence, in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will, must be an influence exercised by coercion or by fraud. In order to come to the conclusion that a will has been obtained by coercion it is necessary to establish that actual violence had been used or even threatened. The conduct of a person in vigorous health towards one feeble in body even though not unsound of mind, may be such as to excite terror and make him execute an instrument which, if he had been free from such influence, he could not have executed. A will thus made may possibly be described as obtained by coercion.”

As per the law, when a person has been induced to make a will by coercion, he is no longer a “free agent” and so cannot have disposed of his property voluntarily. Such a will is not considered by the courts to be valid and no person can obtain a property by reason of a bequest made to him from such an unrecognized will.

This study shall entail a detailed analysis of the law under the Indian Succession Act, 1925, regarding the making of a will as also the requisites of a valid will. The researcher shall go on to show that a will obtained by coercion or undue influence is invalid in a court of law.

Testamentary Succession In India

Every law of succession lays down the rules of distribution of property in case a person dies without making a will. These rules provide for a category of persons and percentage of property that will develop on each of such persons. However, it is preferable that a will is made out to ensure that the deceased actual intension is manifested after their death. Moreover, this way they can take into account special circumstances in the family. For a will to have legal weight, it must be valid. It must have been made by a testator who has the capacity to make wills, i.e. the testator is major and of sound mind. It must be signed by the testator and attested by two or more witnesses. However, it often happens that, due to ignorance of law, or other circumstances, people fail to make a proper, enforceable will. Consequently, confusion ensues and often, the rightful heirs do not receive their fair share.

As per the provisions of the Hindu Succession Act, 1956 it is now possible for a coparcener in a Hindu Joint Family to dispose of his interest in the coparcenary property by a will in accordance with the provisions of the Indian Succession Act, 1925. Further, the 2005 Amendment to the same Hindu Succession Act has made it possible for both sons and daughters to be coparceners in the Joint Family property. Thus, in such cases, the rules of inheritance will not apply and the property in question shall be disposed off in accordance to the wishes of the testator as specified in the will.

The definition of will as under section 2 (h), Indian Succession Act, 1925 details the following essential of a will.

• A will is a declaration by the testator of his intention to dispose of his property after his death.
• It may be revoked or altered during the lifetime of the testator.
• It comes into effect only after the death of the testator.
• It need not be registered.
• It must contain words that comport the intention of the testator so as to come into effect after the death of the testator.

The law does not lay down any particular format to write a will, so the best way of determining whether a document can be called a will is to see whether it directs the disposal of the property to take effect after the death of the testator. If the document purported to be a will does not give to anybody any present interest until after the death of the testator, it can be called a will howsoever it may be styled.

To summarise briefly, the essential characteristics of a will are that it is a declaration of the intention of the testator to dispose of his own property after his death. It is revocable during the lifetime of the testator, being an ambulatory document with no legal effect or validity until the death of the testator.

A will brought about by coercion or undue influence invalidates a will as it negates the free agency of the testator. The effect of coercion and undue influence on a will shall form the basis of discussion in the following chapter.

The Effect Of Coercion On A Will

A valid will must express the mind and intention of the testator. The testator has to be a free agent to execute a valid will. A will that is executed by coercion and undue influence is invalid as it is not the act of the testator as a free agent but really the act of the person exercising the influence. It vitiates the formation of a will. This understanding of the law is reflected in section 61, Indian Succession Act that runs as under:

“A will or any part of a will, the making of which has been caused by fraud of coercion, or by such importunity as takes away the free agency of the testator is void.”

The term ‘coercion' is defined under section 15 of the Indian Contract Act, 1872 as committing or threatening to commit any act forbidden by the Indian Penal Code or unlawfully detaining or threatening to detain any property to influence any person with into causing them to enter into an agreement.

If it can be proved that although all formalities have been complied with, and the party was perfectly within his senses, actual force was used to compel the testator to make the will such a will can never stand.

The foremost requirement of a valid will is that it must express the intention of the testator as a free agent who knows and approves of the contents of the will. However, someone who is a major and is of sound mind may execute a will under circumstances that cast a doubt about its validity. The court may feel that the testator has not exercised his own mind while disposing of his properties and he has been influenced by some kind of pressure to make a bequest that he would not have ordinarily made. Lord Cranworth has held in Boyse v. Rossborough, the leading authority on the effect of coercion and undue influence on the validity of a will was of the opinion that to coercion needn't require actual physical force.

The law states that when a person has been induced to make a will by coercion, cannot be considered able to dispose of his property voluntarily. Such a will is not recognised by a court of law and no person can obtain property so bequeathed to him under such a will. Theobald, in The Law of Wills, states that the influence of a person in a fiduciary relation with the testator may be lawfully exercised to obtain a will or legacy as long as the testator thoroughly understands what he is doing and is a free agent. The burden of proving that a will that has been executed by a competent person who is apparently a free agent has actually been made with undue influence lies on the party alleging this. To establish a case of undue influence, it must be shown that fraud of coercion has been practiced on the testator in relation to the will itself.

The Judicial Committee has set out the legal position regarding the effect of undue influence and coercion in Smt. Gomtibai v. Kanchiedilal as under:

“Influence in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will must be an influence exercised either by coercion or by fraud.”

Undue influence has been defined in s 16 of the Indian Contract, 1872, as the relationship existing between parties such that one party is in a position to dominate the will of the other and uses the position to obtain an unfair advantage over the other. It can be inferred that a position of domination comes from:

• a fiduciary relationship or,
• real or apparent authority or,
• a contract made with a person whose mental capacity is temporarily or permanently affected by age, illness or duress.

It is very difficult to state precisely what constitutes undue influence. The term has a stricter application to wills than to contracts and it has been held in Boyse v. Rossborough that for acts to constitute undue influence, they must arise from coercion or fraud. The Madras High Court has laid down the law in Govindaswami v. Kannammal as under:

“To be undue influence in the eyes of the law there must be coercion. It is only when the will of the person who becomes the testator is coerced into doing that which he or she does not desire to do that it is undue influence.”

Thus, to make a will ineffective, the influence exercised must be caused by coercion destroying the free agency of the testator. The influence must be intended to cause fear and force the testator to make a will that he would not have under ordinary circumstances. It has been observed in Boyse v. Rossborough that the words ‘fraud and coercion' must be interpreted with some latitude. In order to conclude that a will has been obtained by coercion, it may be inferred from the conduct of a person towards another that coercion exists. Acts done to induce or excite terror and execute a will that would not have been executed if the testator had been free from such influence or the creation of imaginary terrors sufficient to deprive the testator of free agency fall under the ambit of coercion and a will so obtained is invalid in the eyes of the law.

Undue influence cannot exist without coercion or fraud. However, it must be noted that all influence cannot be classified as undue. As decided by the Supreme Court in Naresh Charan Das Gupta v. Prakash Charan Das Gupta,

“... not every influence brought upon the testator is undue. A person has every right to plead his case before the testator for a favourable disposition of property. If the testator retains his mental capacity, and there is no element of fraud or coercion, the will cannot be attacked on the ground of undue influence.”

The Bombay High Court has held in Totaram v. Ramabai that it is not enough to show that the testator's will was dominated by another in relation to other matters and transactions, it must be shown that the influence was exercised on a particular occasion and the will was the result of that influence. Thus, persuasion, advice, sentiments of gratitude cannot be termed as undue influence; they are legitimate claims that may be pressed on the testator. This view was affirmed by the Delhi High Court in Kanwar Sain v. State. In the instant case, the Delhi High Court also stressed that undue influence by way of coercion cannot be presumed. It has to be established that the circumstances surrounding the execution of the will are inconsistent with any other hypothesis. Also, the mere fact that the beneficiaries had taken an active part in the execution of the will cannot be used to doubt the validity of the will on the ground of undue influence.

Persons Exercising Undue Influence

Undue influence arises out of a fiduciary relation or a situation of real or apparent authority. Thus, the persons in the best position to exert undue influence by way of coercion are:

1. spouse of the testator
2. heirs of the testator
3. persons in a fiduciary relationship with the testator such as a guardian, physician, advocate
4. spiritual advisors

While the law takes a very lenient approach to the influence exerted by a spouse, it has held that a will may be executed validly to deprive the natural heirs of inheritance as the idea behind execution of a will is to bypass the usual line of succession. In many instances, courts have ruled that sons using influence to execute wills in their favour invalidates the will on account of undue influence caused by coercion. Persons in a fiduciary relationship with the testator have the burden of proof to show that a bequest in their favour was not brought about by undue influence. The foremost example of this would be the Birla-Lodha case in which the validity of a will made by Priyamvada Birla bequeathing her entire property to her accountant and confidant, Mr. Lodha was challenged by the entire Birla clan. The case is still pending before the Calcutta High Court. However, the mere existence of a fiduciary relationship is no evidence of undue influence or coercion by itself. The advice of a spiritual leader has been held to constitute undue influence if it resulted in a will that was unjust and not reasonable.

Thus, it is clear that a will executed under undue influence is invalid. Coercion is an essential element of undue influence and it can be said that coercion makes a will invalid. Coercion amounting to undue influence takes away the free agency of the testator and though the will may have been executed legally, it is vitiated as it does not reflect the intention of the testator himself.

Conclusion

A will, as defined under the Indian Succession Act, 1925, is a declaration of the intention of the testator to dispose of his property after his death. The preceding chapters have clarified the characteristics of a will and the requirements of a valid will.

The foremost factor vitiating a will is coercion amounting to undue influence. However, it must be remembered that not all influence is undue. Persons have a legitimate right to try and get a favourable bequeath from the testator. Another important feature of coercion invalidating a will is that the will has been executed properly. The formation of the will is valid. An analogy may be drawn with the Indian Contract Act that defines coercion. Coercion vitiates a contract that has been validly formed. However, since there is no free consent, the contract is vitiated. Similarly, coercion negates the free agency of the testator. Thus, a validly executed will is vitiated as the will does not reflect the true intention of the testator.

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