Introduction:
In India a Will is defined by Section 2(h) of the Indian Succession Act, 1925 as “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”. It is a formal and written document through which a person (the testator) expresses how his assets should be distributed after his demise, and it can be amended or revoked anytime during his lifetime. For a Will to be valid in India, the testator who makes the Will must be of sound mind, not a minor and the document must be signed and attested as required by law. A Will serves as a person’s final declaration of intent regarding his property distribution after his death governed primarily by the Indian Succession Act, 1925, which outlines the execution, revocation and interpretation rules. Courts interpreting Wills prioritise ascertaining the testator’s true intentions through a “plain meaning rule,” examining words literally before invoking the “armchair principle” under Section 75 to consider surrounding circumstances when ambiguities arise. Landmark Supreme Court rulings emphasise reading the Will holistically, reconciling clauses where possible and favouring later provisions in irreconcilable conflicts to honour the testator’s likely final wishes. This judicial approach balances literal construction with contextual insight, often resolving disputes over family relationships, nature of properties and inconsistent bequests. Your properties and how it should get distributed on your death is entirely up to you. The statutes relating succession are explicitly clear in that what you have earned in your lifetime can also be distributed by you entirely as per your wishes. The process of these bequeaths are clearly spelt out and is adequately codified into the statute. There are minimum formalities involved in this process of succession with minimum expenditure. Simply put, a Will has to be in writing and must be signed by the testator with two witnesses. It cannot get any simpler than that.
In India, interpretation of Wills has evolved through a nuanced body of judicial precedents that illuminate both the complexity of testamentary intent and the delicate balance courts must maintain between literal and purposive interpretations. The Supreme Court has consistently emphasised that the object of construing a Will is to uncover the testator’s true intention, derived from the language used and the surrounding circumstances, without substituting judicial conjecture for expressed words. Through landmark judgments, the Court has laid down guiding principles on ambiguity resolution, the weight of surrounding circumstances, and the interplay between successive bequests or codicils. Examining these decisions not only clarifies how Indian courts approach testamentary construction but also offers valuable lessons on drafting and dispute avoidance in succession matters. Wills, often perceived as simple documents, hold immense legal and emotional weight. They are the final wishes of an individual regarding the distribution of his or her earthly possessions after his or her demise. In India, the law governing Wills is primarily encapsulated in the Indian Succession Act, 1925 (ISA), with specific provisions for Hindus, Sikhs, Jains, and Buddhists under Section 30 of the Hindu Succession Act, 1956 (HSA). While the fundamental principles are clear, the complexities of human relationships, property disputes and evolving societal norms often lead to intricate legal battles. The Supreme Court of India as the apex judicial authority, has played a pivotal role in interpreting these laws, laying down crucial precedents that guide the lower courts to ensure justice. Wills, often perceived as simple documents, hold immense legal and emotional weight. They are the final wishes of an individual on the distribution of their earthly possessions after their demise. While the fundamental principles are clear, the complexities of human relationships, unique nature of property disputes and evolving societal norms often lead to intricate legal battles. In this piece, we cover the following broad categories where the decisions of the apex court had a decisive effect, viz., testamentary capacity and due execution, suspicious circumstances, interpretation of the Wills, revocation and alteration of Wills and Probate and Letters of Administration.
Section 63 of the Indian Succession Act, 1925, prescribes the essential formalities for the execution of a Will. 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 as per his direction. 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 indeed was intended thereby to give effect to the writing as a Will. 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 acknowledgment of his signature or mark, or 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. Section 68 of the Indian Evidence Act, 1872, deals with the proof of execution of documents required by law to be attested. It mandates that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if an attesting witness is alive and subject to the process of the court and capable of giving evidence. Let us dive in with the case laws from the apex court.
- Testamentary Capacity:
- In Venkatachala Iyengar vs B N Thimmaramm, the validity of a Will hinged on two primary pillars: the Testator’s capacity to make a Will and the proper execution of the Will as per legal mandates – sound mind and free will. Section 59 of the Indian Succession Act, 1925 clearly states that “Every person of sound mind not being a minor may dispose of his property by Will.” The concept of “sound mind” is crucial. It does not mean perfect mental health but the ability to understand the nature of the act of making a Will, the extent of the property being disposed of and the persons who are the natural objects of the Testator’s bounty. In this case, the appellant, as the Executor, filed a suit seeking a declaration that Lakshmamma was the absolute owner of certain properties and had the right to dispose of them via a Will executed on August 22, 1945. The suit also sought consequential reliefs to implement the bequests. The respondent, Lakshmamma’s daughter-in-law, contested the Will alleging coercion and questioning Lakshmamma’s mental capacity at the time of execution of the Will. Evidence showed that the appellant played a prominent role in preparing the Will which included substantial bequests to his sons. There was also a lack of unambiguous evidence that the Testatrix had approved the draft or fully understood the Will’s contents. The central issue in this case was the validity and due execution of the Will. Specifically, the court had to determine – whether the Testatrix, Lakshmamma, had signed the Will, whether she possessed a sound mind at the time of execution, whether she understood the nature and effect of the dispositions made in the Will, whether she signed the Will of her own free will and whether the suspicious circumstances surrounding the Will’s execution had been adequately explained by the propounder.
The Judgment: The Supreme Court upheld the High Court’s decision, dismissing the appellant’s appeal. The Court reiterated that while a Will generally needs to be proved like any other document, the propounder bears a heavy onus, especially when “suspicious circumstances” exist. Such circumstances include a propounder taking a prominent role in the Will’s execution and receiving substantial benefits under it or the testatrix’s feeble mental state, or unnatural dispositions. In this case, the appellant’s prominent role and the substantial benefits to his sons, coupled with the lack of convincing evidence regarding the testatrix’s full understanding and free will created significant suspicions. The Court found that these suspicious circumstances were not adequately removed by the propounder leading it to conclude that the Will was not genuinely and validly executed. This landmark judgment emphasised the need for courts to be satisfied that the Will is the product of the Testator’s free volition and not influenced by others.
- In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, the former and others were propounders of the Will, seeking its probate whereas Subodh Kumar Banerjee and sons and descendant of the Testator opposed the Will. The dispute revolved around the Will of Ramtaran Banerjee, a wealthy 97-year-old lawyer, who died on April 1, 1947. The will was purportedly executed on August 29, 1943, when he was 93 years old. The appellants sought probate of this will. The respondents challenged its validity claiming improper execution, lack of genuineness, diminished testamentary capacity of the Testator, and undue influence/fraud. The District Judge granted the Probate, finding that the Testator had a sound mind and the Will was duly executed. However, the High Court reversed this decision largely relying on expert handwriting evidence indicating that the signature was not from 1943. The primary issues before the Supreme Court were whether the Will was duly executed and attested as required by law, whether the Testator had the necessary testamentary capacity at the time of execution and whether there were suspicious circumstances surrounding the Will’s execution that required explanation by the propounders. The court had to decide how much weight to be given to the expert’s handwriting evidence, vis-à-vis, the testimony of attesting witnesses.
The Judgment: The Supreme Court reversed the High Court’s decision and upheld the probate of the will. The court reiterated the established principles when it comes to proving of Wills that inter alia included the principles like the onus of proving the Will lies on the propounder. If there are no suspicious circumstances, proof of testamentary capacity and the testator’s signature would suffice. However, if suspicious circumstances exist (e.g., propounder taking a prominent role in preparing the Will, unnatural dispositions, testator’s mental condition), the propounder must explain them to the court’s satisfaction. The court also emphasised in this case that expert handwriting evidence is opinion-dominated evidence and generally cannot override the clear testimony of attesting witnesses unless there are compelling reasons to do so.
- Presence of ‘Prudent Mind’
In the case of Meena Pradhan v. Kamla Pradhan & Ors the court reaffirmed that a Will, even if executed mere days before death, can be legally valid if it complies with the statutory requirements of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Bahadur Pradhan, the deceased, had two wives: Meena Pradhan and Kamla Pradhan. He had children from both marriages. Seven days before his death on July 30, 1992, Bahadur Pradhan executed a Will bequeathing all his assets to Kamla Pradhan and their daughter, Ritu, effectively excluding Meena Pradhan and her children. The Will was attested by two witnesses, though only one (Suraj Bahadur Limboo) was examined in court. After Bahadur Pradhan’s death, Meena Pradhan challenged the Will’s authenticity, alleging forgery, suspicious circumstances, and the testator’s unsound mental state. The central issue before the Supreme Court was whether the Will executed by Bahadur Pradhan was validly proved in accordance with the statutory requirements of the Indian Succession Act, 1925 (Section 63) and the Indian Evidence Act, 1872 (Section 68), particularly concerning proper attestation and the absence of suspicious circumstances.
The Judgment: The Supreme Court, upholding the decisions of the lower courts, dismissed Meena Pradhan’s appeal. The Court reaffirmed that for a Will to be proved valid, the propounder must satisfy the “prudent mind” test, demonstrating that the Testator signed the Will out of his own free will, with a sound mind, and understanding its nature and effect. The Court emphasised strict compliance with statutory requirements, particularly attestation by at least two witnesses, one of whom must be examined in court if alive and capable. It held that mere exclusion of certain family members or preferential treatment does not automatically create suspicion. The Court found that the attesting witness’s testimony adequately proved the Will’s execution and that the appellants failed to provide sufficient evidence to establish suspicious circumstances, fraud, or undue influence. The judgment stressed that “suspicious circumstances” must be real and germane, not merely speculative. Consequently, the Will’s validity was upheld, and consequential benefits were directed to be disbursed as per its terms.
- Presence of Suspicious Circumstances:
- In Shivakumar vs. Sharanabasappa it was reiterated by the apex court that suspicious circumstances must be “legitimate, real and germane” to the execution of the Will and not based on mere conjectures or surmises. The central issue here was the genuineness and validity of a Will dated May 20, 1991, allegedly executed by Sri Sangappa Shettar, which bequeathed properties to the plaintiffs. The court also considered whether a trust created by the defendants, which included the suit properties, was binding on the plaintiffs. The plaintiffs filed a civil suit seeking declaration of ownership and injunction over properties, claiming rights based on a Will executed by Sri Sangappa Shettar. The Trial Court initially ruled in favour of the plaintiffs, upholding the Will’s authenticity. However, the High Court reversed this decision, finding numerous “suspicious circumstances” surrounding the Will’s execution, leading it to conclude it was not genuine. These circumstances included the use of different coloured papers, inconsistent placement of signatures, varying pen types, and the absence of signatures on certain pages. The High Court also noted that the propounders failed to adequately explain these discrepancies. The plaintiffs then appealed to the Supreme Court.
The Judgment: The Supreme Court upheld the decision of the High Court, dismissing the appeal. The Court meticulously reviewed the evidence and concurred with the High Court’s finding that the Will was not genuine due to the numerous unexplained suspicious circumstances and discrepancies in its execution. The Supreme Court emphasised the principle that while courts do not approach a Will with inherent doubt, they must examine it cautiously and with circumspection, especially when suspicious circumstances are present. The propounder of the Will bears the burden of removing all legitimate suspicions before the document can be accepted as genuine. In this case, the plaintiffs failed to dispel the doubts regarding the Will’s authenticity.
- The presence of “suspicious circumstances” often forms the core of challenges to a Will. The Supreme Court has consistently held that while a Will is a sacred document, courts must exercise “judicial conscience” when dealing with suspicious circumstances. In the case of Jasbir Kaur v. Amrit Kaur, the court clarified that the registration of a will, while offering a presumption of validity, does not make it immune to challenges. The plaintiff/appellant in this case was Smt. Jaswant Kaur (one of the wives of the deceased) and the defendant/respondent was Smt. Amrit Kaur & Ors. (including a grandson of the deceased). The case concerned the estate of Sardar Gobinder Singh Sibia, who passed away in 1954. He had two wives, Gulab Kaur (mother of Jaswant Kaur, one of the wives of the Plaintiff) and Dalip Kaur. After Gobinder Singh’s death, his widow Gulab Kaur filed a suit claiming maintenance and a share in his properties. The Defendant, Surjit Inder Singh (a grandson), presented a Will purportedly executed by Gobinder Singh, which bequeathed the entire estate to him, largely excluding Jaswant Kaur. The Trial Court decreed the plaintiff’s suit, holding the Will invalid. The High Court reversed this, upholding the Will. The central issues revolved around the burden of proving the validity of a Will, especially when surrounded by suspicious circumstances, the interplay between customary laws and the Hindu Succession Act, 1956 in determining succession rights, the standards courts should apply when assessing suspicious circumstances concerning testamentary documents.
The Judgment: The Supreme Court, allowing the appeal, set aside the High Court’s judgment and held that the Will to be invalid. The Court emphasised that in cases where the execution of a Will is “shrouded in suspicion,” the propounder (the party asserting the will) bears a heavy burden to remove all legitimate suspicions before the document can be accepted as the last Will of the Testator. The court found several suspicious circumstances, including the delayed revelation of the Will, inconsistencies in the attesting witnesses’ testimonies, and the unnatural exclusion of other natural heirs without clear justifications. The judgment reiterated the principle that the court must be satisfied that the Will reflects the true intentions of the Testator.
- The Language Deployed in the Will:
In a relatively recent case of Indore Development Authority vs. Manohar Lal and Others reinforces the broader principle of how the courts must look at the substance and intent behind legal documents. In the context of Wills, this means not just a mechanical application of rules, but an assessment of the Testator’s true wishes, especially when suspicious circumstances are alleged. The core issue in this case revolved around the interpretation of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act). This provision deals with the lapse of land acquisition proceedings initiated under the repealed Land Acquisition Act, 1894. A key question was whether the deposit of compensation by the government in the treasury could be considered as “paid” under Section 24(2) to prevent the proceedings from lapsing. This issue had led to conflicting judgments by three-judge benches of the Supreme Court, particularly between Pune Municipal Corporation v. Harakchand Misirmal Solanki (2014) and an earlier Indore Development Authority vs. Shailendra (2018) judgment. The Pune Municipal Corporation case had held that compensation not deposited in the landowner’s account or with the court would lead to a lapse, while Indore Development Authority (2018) stated that tendering compensation was sufficient, even if refused by the landowner. The issues that had to be determined by the court were: What is the correct interpretation of Section 24(2) of the 2013 Act specifically the conjunction “or” in the phrase “physical possession of the land has not been taken or the compensation has not been paid”? Should it be read as disjunctive (“or”) or conjunctive (“and”/”nor”)? Whether the non-deposit of compensation in court, especially when refused by the landowner, leads to the lapse of land acquisition proceedings and also whether a judge who had expressed an opinion in a smaller bench on a referred matter can hear the case in a larger bench.
The Judgment: A five-judge Constitution Bench of the Supreme Court, in its judgment delivered on March 6, 2020, overturned the Pune Municipal Corporation decision. The Court held that for land acquisition proceedings to lapse under Section 24(2) of the 2013 Act, both conditions must be met: physical possession of the land must not have been taken and compensation must not have been paid. The “or” in Section 24(2) should be read as “nor” or “and” in this specific statutory context. The judgment clarified that tendering compensation by the State is sufficient to discharge its obligation, and it is not mandatory to deposit the compensation in court if the landowner refuses to accept it. A deposit in the treasury would not cause the acquisition to lapse. The non-deposit in court would only attract a higher rate of interest as per Section 34 of the 1894 Act, not a lapse of proceedings. The judgment also addressed the issue of a judge’s recusal, upholding the judge’s right to decide on recusal.
- Ascertaining the Testator’s True Intent:
In the case of Navneet Lal v. Gokul, the Court held that the primary duty of the court is to ascertain the intention of the Testator from the words used in the Will. The language used in a Will can sometimes be ambiguous leading to disputes over the testator’s true intentions. The Supreme Court has developed a nuanced approach to interpreting Wills, prioritising the Testator’s wishes over strict literal interpretations. The Will must be read as a whole, and effect must be given to every part of it, if possible. Where there are conflicting clauses, later clauses generally prevail over earlier ones, but only if an attempt to reconcile them fails. This case concerned the interpretation of a Will executed by one Bhola Chaubey, who was childless and governed by Mitakshara School of Hindu Law. Bhola Chaubey had a strained relationship with his brother and nephew. His Will stipulated that his wife Smt. Jarian, would be in possession and enjoyment of his property during her lifetime. Crucially, it also stated that after his wife’s death, his sister’s son, Gokul, would become the “Malik Kamil” (absolute owner) with full proprietary and transfer powers, and would perform his obsequies. After Bhola Chaubey’s death, Smt. Jarian and Gokul initially lived cordially, but later their relationship soured. Smt. Jarian subsequently executed a gift deed and a Will of some properties in favour of Navneet Lal (the appellant). This led Gokul to file a suit claiming his rights under Bhola Chaubey’s Will, which Navneet Lal contested, arguing that Smt. Jarian had received an absolute estate and thus had the right to alienate the property.
The court was called upon to decide whether the Will of Bhola Chaubey confer an absolute estate or merely a life estate upon his wife, Smt. Jarian? What is the correct interpretation of the term “malik” (owner) when used in a Will, particularly when there are subsequent provisions giving absolute ownership to another person?
The Judgment: The Supreme Court of India, in its judgment delivered on December 9, 1975, upheld the decision of the Allahabad High Court, ruling in favour of Gokul. The Court held that the Will, when read as a whole and considering the surrounding circumstances (like the Testator’s strained relations with his brother’s family and his desire for Gokul to perform obsequies), clearly indicated an intention to grant only a life estate to Smt. Jarian and an absolute estate to Gokul after the former’s death. The court emphasised that while “malik” generally denotes absolute ownership, its meaning can be restricted by the context of the entire document. To interpret the Will as granting an absolute estate to the widow would create repugnancy with the subsequent clear bequest of absolute ownership to Gokul and would also lead to the property eventually passing to the very relatives the Testator sought to exclude. The Supreme Court reinforced the principle that the cardinal rule in construing a Will is to ascertain the Testator’s intention from the entire document, avoiding interpretations that render any part inoperative or contradict the overall scheme of the Will. Therefore, Smt. Jarian’s gift deed and Will in favour of Navneet Lal were held invalid.
- The Importance of Satisfying the Conscience of the Court:
The Bombay High Court in Lilian Coelho & Ors v. Maria Philomena Coalho delivered the verdict in this case just 3 days ago. It was a case that had been remanded to it by the Supreme Court. The case concerns the estate of Mrs. Maria Francisca Coelho, who died in 1985, leaving a Will dated 7 July 1982 purporting to bequeath her movable and immovable properties equally to three children, including the appellant, effectively excluding two sons. Maria sought Letters of Administration with the Will annexed. The widow and children of an excluded son in a caveat alleged forgery, undue influence and suspicious circumstances around the Will. The Single Judge held that the Will was duly executed and attested, that the testatrix had testamentary capacity, and that forgery, coercion or undue influence were not proved, but still refused probate it because of multiple suspicious circumstances. The Division Bench initially reversed that decision, treating valid execution was enough; the Supreme Court set aside this judgment and remanded it back to the Bombay High Court, clarifying that valid execution and genuineness are distinct and suspicious circumstances must be independently evaluated. The Will used a cryptic formula like “all my property movable and immovable” without specifying the properties even though an advocate drafted it and the mother only had a life interest in the key Bandra property under her husband’s earlier probated Will; the Court treated this as patent uncertainty attracting Section 89 of the Indian Succession Act and not curable by extrinsic evidence in view of Section 81. The appellant played a prominent role in the Will’s execution but did not step into the witness box herself; the Bench drew an adverse inference, rejecting a medical excuse because the records that pre‑dated the trial by several years and saw no convincing explanation for the exclusion of two natural heirs when read cumulatively with other facts. On reconsideration after the remand, the Division Bench held that although formal proof of execution and capacity stood, the propounder had failed to dispel the serious suspicious circumstances to the satisfaction of the court’s conscience.
The Judgment: The appeal was dismissed; refusal of Letters of Administration with the Will annexed was affirmed, effectively denying probate to the 1982 Will and leaving devolution governed by the earlier probated Will of the husband or applicable intestacy rules for the estate. The judge also observed in the judgment that ‘valid execution of the Will and its genuineness are different and distinct and surrounding suspicious circumstances must be independently evaluated’. The Court presciently observed thus while delivering the judgment: “In contemporary times, we often hear the famous phrase “Vasudhaiva Kutumbakam,” meaning that the world is one family. However, cases such as the present one are classic examples of stark differences: disputes within families over property that show no end in sight and ultimately result in delayed litigation. This is a tendency that ought to be curtailed in larger societal interest. We conclude with this solemn and optimistic hope”.
- Alteration & Revocation of Wills:
In the case of Badri Lal vs Sursh & Others the Supreme Court held that a Will cannot be revoked by a subsequent agreement between beneficiaries or parties; revocation must occur only in the modes prescribed by Section 70 of the Indian Succession Act, 1925. The Court analysed Section 70 in detail and clarified that a Will or codicil can be revoked only:
By marriage (subject to the statutory exceptions),
By another Will or Codicil,
By a written Declaration of an intention to revoke, executed with the same formalities as a Will, or
By burning, tearing or otherwise destroying the Will with animus revocandi (intention to revoke).
The Judgment: The apex court in this case held that compromise deeds, family arrangements or agreements between heirs do not, by themselves, amount to revocation. Any argument that a Will stood “impliedly revoked” by subsequent conduct must still fit within the statutory modes of Section 70. As a matter of principle, Wills are ambulatory and remain revocable during the testator’s lifetime, but only in the ways prescribed by the Act. However, marriage as an automatic ground of revocation is not universal; for certain classes (e.g., Hindus covered by Section 57), courts have read Section 69 in a limited way so that marriage does not revoke the Will. In another case Kalyan Kumar Nag vs Dina Guha, the Supreme Court had considered Sections 69 and 70 together, examining how marriage affects an existing will. These decisions recognise the general Rule under Section 69 that marriage revokes a prior Will but also highlights that this operates subject to the special scheme of Sections 57 – 58 and the Schedule for Hindus, Buddhists, Sikhs and Jains.
Conclusions:
The Supreme Court of India, through its numerous pronouncements, has meticulously built a robust legal framework around Wills. These landmark judgments serve as guiding principles, ensuring that the last wishes of a Testator are respected while upholding the sanctity of legal processes and preventing fraud or undue influence. The emphasis on proof of due execution, the removal of suspicious circumstances and the paramount importance of ascertaining the Testator’s true intent form the bedrock of testamentary law in India. While each case presents unique facts, the principles established by these judgments provide clarity and consistency empowering individuals to plan their legacy with confidence and ensuring a fair and equitable distribution of their assets.
While on the subject, here is some breaking news to cheer about. The Indian government has effectively abolished the mandatory requirement for probating Wills through the Repealing and Amending Act, 2025, which omits Section 213 of the Indian Succession Act, 1925. This reform eliminates the previous religion- and geography-based distinctions – requiring probate for Hindus, Buddhists, Sikhs, Jains, and Parsis in Mumbai, Chennai, and Kolkata (former Presidency towns) – making probate optional nationwide to simplify estate administration, reduce costs, and promote uniformity. While voluntary probate remains available for added legal certainty in disputed cases, executors and beneficiaries can now directly approach banks, registries and authorities with the Will itself. That is some good news to cheer about.
Thank you.
