SOME KEY FACTORS TO BE KEPT IN MIND WHILE EXECUTING/ DRAFTING OF WILL

The Supreme Court of India in Kavita Kanwar vs Pamela Mehta and Ors. while dismissing an Appeal seeking grant of probate in relation to a Will discussed some relevant factors on the basis of which Courts would test the genuineness/validity of a WILL.

Although the Apex Court opined that the Will in question cannot be viewed with suspicion merely if any of the following features are present in a WILL, But the said list is indicative of what features may bear on the courts mind if the totality of circumstances raise doubts about genuineness of the Will :-

1. Only because the appellant had played an active role in execution thereof though she is the major beneficiary; or
2. Only because the respondents were not included in the process of execution of the Will; or
3. Only because of unequal distribution of assets; or
4. Only because there is want of clarity about the construction to be carried out by the appellant; or
5. Only because one of the attesting witnesses being acquaintance of the appellant; or
6. Only because there is no evidence as to who drafted the printed part of the Will and the note for writing the opening and concluding passages by the testatrix in her own hand; or
7. Only because there is some discrepancy in the oral evidence led by the appellant; or
8. Only because of any other factor taken into account by the Courts or relied upon by the respondents.“
   

The Court while explaining the relevant considerations held that if on a holistic view of the matter, the Court feels satisfied that the document propounded as Will indeed signifies the last free wish and desire of the testator and is duly executed in accordance with law, the Will shall not be disapproved merely for one doubtful circumstance here or another factor there. However Court would go ahead to examine the quality and nature of each of these above listed factors and the cumulative effect and impact of all of them upon making of the Will with free agency of the testatrix.