In the Landmark judgment of Kavita Kanwar v. Mrs. Pamela Mehta, on 19 May 2020 (“Kavita Kanwar case”),Supreme Court has discussed critical key factors that may render a Will surrounded by suspicious circumstances as invalid.

Drafting a Will is one of the crucial parts of estate planning and ensures that the testator’s wishes for distribution of his or her assets are taken care of. It brings about a sense of security in the testator in relation to their assets that everything will be managed and transferred to the one they love and trust the most.

Indian law is very clear with regard to the mandatory legal requisites of a valid Will. These include:

• The testator’s capacity to execute a Will
• Clarity in relation to inheritance and,
• Witnesses to the Will. 

However, in some cases, a Will may be challenged on the ground of suspicious circumstances. The Kavita Kanwar case is a suitable example of key aspects considered by courts while deciding upon the validity of such a Will. The facts of the case are as follows:

Family & the Will:

• As per the Will, the primary asset of the Testatrix was her home in Defence Colony, New Delhi. .
• As per the Will, Kavita Kanwar was not only the major beneficiary, but also its executor. 
• While Pamela Mehta, the widowed daughter of Testatrix who lived on the first floor of the Testatrix’s house along with her daughter, did not receive any considerable bequest.
• Exclusion of the only son from the immovable property, while the relationship between Mother-son was sweet

Probate Application:

Kavita Kanwar, being the executor of the Will, filed for probate in the Trial Court, which was refused as the Court found various mysterious circumstances surrounding the execution of the Will.

Supreme Court findings:

The Supreme Court stated that a will has to be proved like any other document. Certain elements are indications of suspicious circumstances, such as:

• a shaky and doubtful signature,
• a feeble or uncertain mind of the testator
• unfair disposition of property, 
• unjust exclusion of legal heirs, 
• and the active involvement of the major beneficiary in the execution of the Will.

The Supreme Court triggered several suspicious circumstances around the Will in question, such as:

• Kavita Kanwar was the major beneficiary and played an active role in the execution of the Will.
• Relevant reason was missing for the exclusion of the other children of the Testatrix in the major part of the estate.
• The manner of writing the Will and ambiguity of technical and legal words.
• Existence of an alleged third page of the Will.
• Contradictory statements of attesting witnesses.
• There was no evidence that the Testatrix understood the contents of the Will.

Key Takeaways and AasaanWill recommendations:

• One must ensure to be aligned with the legal requirements while drafting the Will.
• There may be a challenge on the ground of mental capability of the testator at the time of executing the Will.
• AasaanWill recommeds to consider acquiring a proof of competency by a medical practitioner prior to executing the Will.
• Additionally in order to remove doubts, video-recording during the execution process may be helpful
• Attesting witnesses should not be the same as of the beneficiary of the Will.
• Registration of a Will is not mandatory by law but it is helpful to prove its genuineness during court cases.

The execution of a Will is an important step. Therefore, the above conditions should be kept in mind while making the Will. If you have any questions feel free to write to us at [email protected] 

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