Will: Grounds of Challenge



Where there is a will, there is a lawsuit. -Addison Mizner


On 29th September 2018, a workshop was organised by Bombay Bar Association on testamentary and interstate succession. During the said workshop, then president of the Association, Dr. Milind Sathe, Senior Advocate shared an anecdote that one of his professors in law school had given a punchline while commencing a lecture of law of succession. The said lines were as follows “In order to succeed in a legal profession, one should have strong, very very strong will…………………….left by either father or father-in-law”. To which, another speaker in the same workshop, Ms. Rajni Iyer, Senior Advocate in a witty manner responded that “only father or father-in-law? What about mother or mother-in- law?”.

Jokes apart, estate planning is an important and everlasting gift that one can give to their family. In pursuing the same, one of the most significant documents is will. As per Section 2(h) of Indian Succession Act, 1925 (“ISA”), ‘will’ has been defined as the legal declaration of the intention of a person with respect to his property which he or she desires to take effect after his death. It is document in which a person specifies the method to be applied in management and distribution of properties after his/her death. One of the most common question that arose is whether a will bequeathing ancestral property is illegal? The answer is that a will to ancestral property is not entirely illegal which means a coparcener after acquiring his or her share in ancestral property can make a will to his or her share and bequest it.1 A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of Indian Succession Act, 1925.

Next question arises is the manner in which will has to be executed. Section 213 (1) of the ISA stipulates that in order to execute a will it is mandatory for every legatee or executor to obtain a probate of will or letter of administration from the court of law after the death of testator. Probate is a copy of will that is certified by the seal of a court of competent jurisdiction whereby rights pertaining to the administration of an estate is granted to the executor appointed under the will. In the event, no executor is appointed under the will then the beneficiary of deceased/testator will have to file an application for letter of administration. In short, probate or letter of administration is conclusive evidence of the testamentary capacity of the person who made the will and as to the genuineness of will and appointment of executors. The other document relevant in terms of will is succession certificate. Succession certificate is a sanctioning document that sanctions the right to inherit debt and securities to the legal heirs of the deceased who died intestate.

While issuing a probate or letter of administration, the court determines the authenticity and the validity of a will. At that juncture, any party i.e., kin, caretaker etc. interested in the estate of deceased/testator can challenge the will by filing a suit. The present article discusses the possible grounds of challenging the will.

Grounds of challenging a will

In order to receive probate or letter of administration qua any will, the propounder has to go through stages of proving of will. On combined reading of Section 63 (c) of ISA2 and Section 68 of the Indian Evidence Act, 18723 the onus of proving the will is on the propounder. The propounder has to prove the legality and execution of the will by proving the absence of suspicious circumstances surrounding the will and also by proving the testamentary capacity and signature of the testator. The propounder of the will must prove the signature and handwriting of the testator or executant in the manner provided under Section 69 of the Indian Evidence Act, 1872.

In the famous H. Venkatchala’s case4, the Supreme Court (“SC”) held that a propounder of a will must prove:

  1. That the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will;
  2. When the evidence adduced in support of the will is disinterest, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder.
  3. If a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion.

In order to counter the legality of will, the caveator needs to challenge the testamentary capacity or signature of testator on the will or needs to show the presence of suspicious circumstances. One of the most common ground taken by the caveator to challenge the will is that the will is surrounded by suspicious circumstances and/or will is a forged document.

The Apex Court of India in the judgement titled as Niranjan Umeshchandra Joshi vs Mrudula Jyoti Rao5 has summarised the past judgements to describe circumstances tantamount to suspicious. Such circumstances are as follows:

  1. When a doubt is created in regard to condition of mind of the testator despite his signature on the will;
  2. When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
  3. where propounder himself takes prominent part in execution of will which confers on him substantial benefit.

While adjudicating the validity of ground of suspicious circumstances, the court is required to adopt a rational approach and is furthermore required to satisfy its conscience as an order granting probate is a judgement in rem. In the judgement of Anil Kak vs Sharada Raje6the Apex Court held that generally, execution of any document can be proved by proving the contents of the documents and the signature thereof, however, in the event there exists suspicious circumstances, the party seeking to obtain probate and/or letters of administration with a copy of will annexed, must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.

Another landmark judgement which lists down the non-exhaustive suspicious circumstances which may be found to be surrounding the execution of will is Bharpur Singh and others vs Shamsher Singh7Those circumstances are as follows:

  1. The signature of the testator may be very shaky and doubtful or appear to be his usual signature.
  2. The condition of testator’s mind may be very feeble and debilitated at the relevant time.
  3. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion or absence of adequate provisions for the natural heirs without any reason.
  4. The dispositions may not appear to be the result of testator’s free will and mind.
  5. The testator used to sign blank papers.
  6. The Will did not see the light of the day for long.
  7. Incorrect recitals of essential facts.

In order to succeed in defending the above challenges, the propounder of the will has to remove all the suspicious circumstances to satisfy that the will was duly executed by the testator wherefor cogent and convincing explanation shrouding the making of will must be offered.8

Amongst other ground mentioned above, the ground which is a matter of discussion and interpretation before the courts in India is a will obtained under fraud, coercion or importunity (collectively ‘undue influence’) which is provided under Section 61 of the ISA.9 In Naresh Chandra Das Gupta vs Paresh Charan Das Gupta10the Apex Court has categorically held that not every influence which is brought to bear on a testator that can be characterised as “undue”. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour and if the testator retains his mental capacity, and there is no element of fraud or coercion then the will cannot be attacked on the ground of undue influence. The court in the said judgement also relied upon the observation of Sir JP Wilde in Hall versus Hall11 which is reproduced below:

But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like,-these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort,-these, if carried to a degree in which the free play of the testator’s judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led, but not driven; and his will must be the offspring of his own volition, and not the record of some one else’s

While challenging the will, the caveator needs to vigilant about the limitation period. The limitation period for such challenge is governed by Article 137 of Limitation Act which would begin from the time when right to sue accrues based on a cause of action. The right to file probate, however, is a continuous right and, therefore, Article 137 has no application on it.


In a few cases, the parties in order to avoid the stage of proving of a will, maliciously enter into a settlement and file an application under Order 23 Rule 3 of the Code of Civil Procedure, 1908 for compromise decree. In such cases, the law reiterated by various courts is where the parties enter into an agreement or arrangement by which the requirement of having to prove the will is sought to be done away with, and that such agreement is not consented to by all, the Court should not, as a matter of public policy, endorse the application for compromise. However, if the compromise is proceeded by proof of will after following the procedure prescribed by law, and it incorporates the terms of the will, it is open to the Court to act upon such compromise.12

Hence where all things being appropriate and as per the law, the estate of deceased can pass on to his legal heirs, successors and legatees.

  1. CS (OS) No. 1737 of 2012 Delhi High Court Surender Kumar versus Dhani Ram.
  2. s 63(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 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.
  3. s 68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]
  4. AIR 1959 SC 443.
  5. (2006) 13 SCC 433.
  6. (2008) 7 SCC 695.
  7. (2009) 3 SCC 687.
  8. Jaswant Kaur versus Amrit Kaur, (1977) 1 SCC 369.
  9. s 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.
  10. 1955 AIR SC 363.
  11. [1868] LR 1 P & D 481.
  12. P. Jothi Bai versus Dorairaj and Others, AIR 2002 Mad 191; Mutukdhari v. Smt. Prem Debi & Ors., AIR 1959 Pat 570.


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