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Illustrations

(i) A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but has not a competent understanding as to the nature of his property, or the persons who are of kindred to him, or in whose favour it would be proper that he should make his will. A cannot make a valid will.



(ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid will.
(iii) A, being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property makes a will. This is a valid will.
COMMENTS
(i) In order to constitute sound testamentary disposition the testator must retain a degree of understanding to comprehend what he is doing, have a volition or power of choice and that what he does is really his doing and not the doing of anybody else; Swinfen v. Swinfen, AIR 1953 Nag 316.
(ii) Where execution of a Will has been proved by reliable and cogent evidence, the presumption would be that the testator was sane and had sound testamentary capacity; Man Kaur v. Gurnam, AIR 1984 NOC 51 (Punj).
(iii) A probate court is only concerned with the question as to whether the document put forward as the last will of the deceased person was duly executed and attested. The court is also to see whether at the time of the execution of that document whether the testator had sound disposing mind. The probate court is not to embark on the question relating to disputed questions of title and possession; Papoo v. Kuruvilla, 1994 (2) KLT 278.
(iv) If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will be unnatural and might cut off wholly or in a part near relations; Gopal v. Smt. Adarmoni, (1988) I OLR 352.
(v) A minor being of immature understanding cannot be said to be of sound mind and as such incapable of making a Will. An exception to this principle is to be found in section 60 of the Indian Succession Act. A Will executed by a minor, though inoperative as a Will may be operative as a valid authority to adopt; Vijayratnam v. Sudarsan, AIR 1925 PC 196.
(vi) A minor of whose person and property a guardian has been appointed by the court shall remain a minor until he attains majority under section 3 of the Indian Majority Act, 1875 and till such time incompetent to make a Will; In re Miranda, AIR 1924 Cal 644.
(vii) In order to make a valid Will testator need not be in perfect state of health. Even a tuberculosis patient may be in fit state of mind to execute a Will. Illness and physical weakness of the testator/testatrix would least affect his/her mental health or disposing state of mind in the absence of evidence to the contrary; Jamuava Dasi v. Hari Dasi, 1957 ALJ 667.
(viii) The testator being old and also suffering from paralysis. There was no material to show that he understood and accepted deposition made in Will. The soundness of mind was also not proved. Also the execution and attestation was surrounded by suspicious circumstances, prodigious in number. Profounder failed to establish authenticity of the Will. It has been held that no probate could be granted; Vasudeo Mahadeo Paranjape v. Smt. Suman Anant Paranjape, AIR 1994 NOC 137 (MP).
(ix) Mere signatures of witnesses towards the end of an instrument or somewhere on an instrument are quite sufficient to show without explanation that the witnesses put their signatures by way of saying that they had seen the document being executed and had received an acknowledgement. It is not necessary for them to state that they put their signatures in the presence of the testator; Dulhin Ful Kueri v. Moti Jharo Kuer, AIR 1972 Pat 214: 1972 BLJR 256 (DB).

60. Testamentary guardian
A father, whatever his age may be, may by will appoint a guardian or guardians for his child during minority.

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

Illustrations

(i) A, falsely and knowingly, represents to the testator, that the testator’s only child is dead, or that he has done some undutiful act and thereby induces the testator to make a will in his, A’s favour; such will has been obtained by fraud, and is invalid.


(ii) A, by fraud and deception, prevails upon the testator to bequeath a legacy to him. The bequest is void.
(iii) A, being a prisoner by lawful authority, makes his will. The will is not invalid by reason of the imprisonment.
(iv) A threatens to shoot B, or to burn his house or to cause him to be arrested on a criminal charge, unless he makes a bequest in favour of C. B, in consequence, makes a bequest in favour of C. The bequest is void, the making of it having been caused by coercion.
(v) A, being of sufficient intellect, if undisturbed by the influence of others, to make a will yet being so much under the control of B that he is not a free agent, makes a will dictated by B. It appears that he would not have executed the will but for fear of B. The will is invalid.
(vi) A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will of a certain purport and does so merely to purchase peace and in submission to B. The will is invalid.
(vii) A, being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B.
(viii) A with a view to obtaining a legacy from B, pays him attention and flatters him and thereby produces in him a capricious partiality to A. B, in consequence of such attention and flattery makes his will, by which he leaves a legacy to A. The bequest is not rendered invalid by the attention and flattery of A.
COMMENTS
(i) The influence to vitiate an act must amount to force and coercion destroying free agency. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator and his signature as required by law, court would be justified in making a finding in favour of the propounder. But in cases in which an executor of the Will is surrounded with suspicious circumstances and the propounder fails to remove the suspicion as to execution of the Will, probate would be refused; Asutosh v. Umasashi, AIR 1984 Cal 223.
(ii) Where the suspicion arises with regard to a particular clause of a Will which is removable but the suspicion is not removed by the propounder, the court can admit the rest of the instrument to probate; Sarat Kumari v. Swatichand, 33 CWN 374: 56 IA 62: AIR 1929 PC 45.
(iii) To constitute fraud the conduct of the party committing the fraud must be deliberately dishonest. Fraud may be pleaded as a defence in a probate proceeding alleging that the execution of the Will was obtained by fraud. But the burden of proving fraud lies squarely upon the person who alleges the same; Kamla v. Ratan, AIR 1971 All 304.
(iv) To constitute coercion actual violence is not the necessary element to be proved. All that is required to be proved is that there must be some influence relating to the making of the Will itself and over bearing the mind of the testator; Boyse v. Rossbarough, (1857) HL Cas 2.
(v) The mere fact that a person has been suffering from some mental distress is not sufficient to give rest to a presumption of undue influence. Apart from mental distress there must be some action exerting pressure or influence on behalf of the other party; Gobordhan v. Jai Kishan, I LR 22 All 224.

62. Will may be revoked or altered
A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will.
COMMENTS
(i) Where the testator or testatrix, an illiterate person, intelligently understood contents of the Will, when it is read over to him or her and directed changes in it, it cannot be said that the Will was not intelligently executed; L. Chamanlal v. Ram Katori, AIR 1972 SC 2296.
(ii) A Will is of its own nature revocable and, therefore, though a man should make his testament and last Will irrevocable in the strongest and most express terms, yet he may revoke it, because his own act and deed cannot alter judgment of law to make that irrevocable which is of its own nature revocable; Ram Avtar v. Ram Sundari, AIR 1959 Pat 585.
(iii) In case of two Wills, the latter one will prevail; Badari Basamma v. Kandrikeri, AIR 1984 NOC 237 (Kant).

Chapter III - Of the Execution of unprivileged Wills
63. Execution of unprivileged wills
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules: —
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

COMMENTS
(i) In order g and signing the document; Radharani Devi v. Kadambini Devi, AIR 1995 Ori 88.
(iii) For the genuineness of the Will it is required to be proved whether two attesting witnesses have seen the testator sign and they signed in presence of the testator; S.A. Quddus v. S. Veerappa, AIR 1994 Kar 20.
(iv) If no form is prescribed for attestation, then witness need not be labelled as attesting witness; K.M. Verghese v. K.M. Ooknnen, AIR 1994 Ker 85.
(v) Considering human behaviour absence of provision for the two ladies cannot be said to be natural and when suspicious circumstances have not been satisfactorily explained, Will cannot be held to be genuine; Smt. Gattu Devi v. Ladu Narain, AIR 1994 NOC 23 (Raj).
(vi) As regards attestation of Will, the clause (c) of section 63 required that the Will shall be attested by two or more witnesses. It is not necessary that both of them be present simultaneously at the time of putting their signatures but the requirement is that each of the attesting witness must have seen the testator sign or affix his mark to the Will or has received from the testator a personal acknowledgement of his signature or mark on the will. There is also an additional requirement that each of the attesting witness shall also sign the Will in the presence of the testator ; Smt. Punni v. Sumer Chand, AIR 1995 HP 74.

64. Incorporation of papers by reference
If a testator, in a will or codicil duly attested, refers to any other document then actually written as expressing any part of his intentions, such document shall be deemed to form a part of the will or codicil in which it is referred to.
Chapter IV - Of privileged Wills
65. Privileged wills
Any soldier being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a will made in the manner provided in section 66. Such wills are called privileged wills.
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