The Act provides for privileged and unprivileged wills. All wills are unprivileged except those made by soldiers or airmen employed in an expedition or engaged in actual warfare, and mariners at sea. An unprivileged will must be in writing, signed by the testator in the presence of witnesses and signed by two or more witnesses in presence of testator. The testator should have the testamentary capacity, sound disposing mind, knowledge of contents of the will, and the will should be executed by the testator voluntarily that is free from undue influence/ fraud/ coercion.

Over the last few years, the courts in India have delivered certain landmark judgements which provide clarity on interpretation of laws relating to enforcement of wills.

The high court of Delhi, in the case of Vikrant Kapila & Ors. v. Pankaja Panda & Ors, while dealing with a dispute regarding the interpretation of clauses in the will of the deceased testator, stated that it is the duty of the court to give purposeful meaning to the words, and logical interpretation to the language of a will to draw out the real intention of the testator and recognise the dispositive rights of the beneficiaries. Thus, where an absolute bequest has been made by a testator in respect of certain property to certain persons, then a subsequent bequest made qua the same property later in the same will to other persons will be of no effect.

The court observed the principles of interpretation of conflicting clauses in the will to be as follows:

(i) a will has to be read as a whole and in case of contradictions, inconsistencies, variations, or the like, they “must be brought to variance with each other” on a level playing field;

(ii) all clauses in a will are to be given equal importance and uniformity in conjunction with each other and not interpreted disjointly;

(iii) in case certain clauses are inconsistent and a divergent meaning is possible, the order of precedence should be followed, that is, the more powerful or meaningful clause is to take precedence over the less meaningful clauses;

(iv) where words in a clause can be interpreted in more than one way, the best possible and constructive meaning should be given with the overall spirit of the will in mind.

In the case of Swarnlatha and Ors v. Kalavathy and Ors, the Supreme Court (SC) observed that in the matter of appreciating the genuineness of execution of a will, it was not for the court to see whether the distribution made by the testator was fair and equitable to all of his children. In this case, where the property was bequeathed only to sons, to the exclusion of daughter by both the parents under their wills, the wills were challenged by one of the sons and the daughter on the grounds that the other brother had fraudulently obtained signatures of the parents, and that the circumstances surrounding the execution were suspicious.

The SC noted that “the exclusion of one of the natural heirs from the bequest, cannot by itself be a ground to hold that there are suspicious circumstances.”

The high court of Madhya Pradesh in the case of Kamla Bai v Narmada Prasad, dealt with a substantial question of law - whether a sole surviving coparcener can execute a will with respect to the ancestral property. The court observed that before the 2005 amendment to the Hindu Succession Act, 1956 if the sole surviving coparcener had a male child only then he could not claim to be the sole surviving coparcener, but after the 2005 amendment even if a sole surviving coparcener had a female child, his daughter would be a coparcener and therefore, he cannot bequeath the ancestral property as the sole surviving coparcener. However, the court noted that this amendment is not applicable if such property is subjected to any disposition or alienation, partition or testamentary disposition which took place before December 20, 2004. Thus, it was held that subject to this proviso, if on the date the will was executed, the testator was the sole surviving coparcener in respect of the ancestral property, then he was competent to execute the will bequeathing the property, as such ancestral property had become separate property.

It is evident from the recent array of judgements that the courts have clarified and interpreted the wills in a manner which intends to empower the testator and reduce to the extent possible, judicial intervention in the interest of autonomy of the testator and the recent decisions with respect to wills have been granted to give utmost sanctity to the intentions of the testator under the will.

This article is authored by Shrutikirti Kumar, partner and Karuna Sharma, senior associate, Shardul Amarchand Mangalsdas & Co.