Will
Will When takes effect.
A will takes effect on the death of the executant and during his
lifetime is an ambulatory document revocable at any moment, having no legal
effect whatsoever. It is a secret and confidential document which the executants
is never ordered to produce. In India where a will may be deposited with the
Registrar, under the Indian Registration Act, the terms of the Act ensures that
the contents remain secret until the death of the executants.
Hubert James Vs. Gulam Husain Paksuma (1949)1 DLR (PC) 5.
—Admission made in a will.
The scope of an admission made in a will by living person must be
determined by not only with reference to the whole document in which it
appears, but also in the light of the fact that the document was not intended
to take effect until the death of the person making the admission. There is no
justification for treating such an admission as admitting the existence of a
partnership effective before the death
of the testator with all the consequences which would flow from such a
relationship. Ibid.
—Construction of—The rule of construction generally is that
a will must be read as a whole to ascertain there from the intention of the
Testator and having so ascertained that intention must be given effect to so
far as legally possible.
Joy Kumar Dutta Vs. Sita Nagh Dutta (1952) 4 DLR 400.
Genuineness Proof—Signature of testator disputed. Disputed signature appearing to have been written somewhat slowly with
small breaks.
Manner of signature not inconsistent with testator’s state of health at
the time-No expert evidence adduced to prove genuineness of hand-writing—Their
Lordships were not satisfied only upon comparison of disputed signature with
admitted signature of the deceased testator that the disputed signature did not
look like the accepted ones.
Gamnamaneedi Madhavayya Vs. Gamnamaneedi Achamma (1950) 2 DLR 247 (PC).
—Attesting witness—Evidence of— Evidence of
attesting witness who was a registered medical practitioner of 15 years
standing attending on deceased testator—Witness also found to have attested
earlier will of the testator—Witness a family doctor of testator for many
years—His evidence that will was genuine could not be rejected because he
belonged to rival faction in village. Ibid.
—Will executed on Saturday—Testator too ill to get the will registered
on the very day—Next day Sunday—Will intended to be registered on Monday but
testator dying on Sunday—No adverse inference could be drawn because of non
registration of will, specially when the will did not require registration for
its validity—Similarly, no adverse inference could be drawn from the fact that
the will was not produced till when legatee’s title was impeached. Ibid.
—Mere registration cannot be regarded as to the voluntary nature of
execution.
It is true that mere registration cannot be regarded as in law,
affording sufficient proof of the voluntary execution of the will much less of
its being executed while of sound disposing mind by the Testator. Where there
are circumstances of suspicion, it is the duty of the courts to accept such
evidence with great caution, and only to the extent to which it goes.
Fate Mahamud Vs. Mst. Niamat (1955) 7 DLR (FC) 165.
—Proof of registration proceedings raises the presumption that those
proceedings were regular and honestly carried out and the evidence of due
registration is itself such evidence of execution against the person against
whom the document is sought to be proved. Ibid.
—In the courts in India a caution has been sounded to the effect that
notwithstanding the value of the decisions in the cases of Tyrrell v. Painton
and Pandock Barry v. James Butlim laying down the rule that when a will is
sought to be propounded the onus of proof in every case lies on the person
seeking to prove the will to satisfy conscience of the court that the
instrument so propounded in the court is the last will of the testator, it must
not be forgotten that the law is laid down in clear imperative terms by Acts of
the Indian Legislature, and it is by the provisions of those Acts that a court
must be guided.
Samarendra N Roy Vs. Suresh Ch. Roy (1960) J2DLR 788.
—Testamentary capacity
Where the executor died many years after the death of the testator and
during his lifetime took no steps to prove the will, the transferees from the
heirs of the executor obviously have no locus standi to come before the court
for letters of administration especially where they cannot be held to be
transferees from a universal or residuary legate.
In such a case although the will is found to be genuine and legally
executed and attested, the suit must fail on the ground. that the heirs have no
locus standi to file the same. 2 PLR (Dac.) 658.
—Party setting up a will must prove that the Testator had sound
disposing capacity—Presumption as to the testator’s capacity to execute the
will.
Biswaswar Das Karmakar Vs. Sasanka Mohan Das Karmakar (1983)35 DLR (AD)
315.
—Burden of proof on the person who propounds the will—Caution which a
Court must take when the impounder happens to derive some interest under the
will. Ibid.
—When a prominent part is taken by the propounded in the execution of
the will that may constitute a suspicious circumstance. Ibid.
—Mere registration is not sufficient to dispel suspicion—Close
examination of evidence of registration is necessary. Ibid.
—Delay: in propounding the will may constitute a suspicious circumstance
though it may not be a ground for refusing grant of probate. Ibid.
—Delay, in case of delay if delay is explained— No adverse conclusion
can be drawn against granting probate. Ibid.
—Propounded of the will must himself prove that the. testator who
executed the will was in sound mental condition, knew exactly what he was
doing.
Paresh Chandra Bhowmik Vs. Hiralal Nath (1984) 36 DLR (AD) 156.
—Rules governing proof of due execution of a will. The rules governing
proof of due execution of a will which is charged with suspicion were examined
by the Privy Council in the case of ‘Harmes v. Hinkson’ as referred to above.
It was observed there.
“Those rules enjoin a reasonable skepticism not an obdurate persistence
in disbelief. They do not demand from the Judge, even in circumstance of grave
suspicion, a resolute and impenetrable incredulity.
He is never required to close his mind to the truth.” Ibid.
—Witness
However excellent a judge’s note may be, the cases must be rare where no
transcript being available, the appellate Court in a case involving the
veracity of a witness can properly disturb the finding of the fact of the trial
Judge who made the note.
Md. Akbar Abdul Sattar Vs. WL Bogistra (1956) 8 DLR 19 (PC).
—Credibility—Trial Court considered witness as one of truth and
appellate Court not finding reason to disturb that view—Witness to be treated
as witness of truth.
Assena Marikar Vs. Alfred Weerasuriya (1956)8 DLR 48 (PC).
—Advantage of the trial judge in seeing
and hearing the witnesses, when of no value.
The advantage of the trial Judge in seeing and hearing the witnesses who
deposed before him is perhaps not so great when the evidence is heard on three
dates widely separated each from the other and when the judgment is written
seven months after the last hearing.
Wills Pillai of Valvetiturai Vs. Thaialpayar (1953)5 DLR 197 (PC).
Facilities to appear—No difficulties
should be placed beyond the inevitable minimum in the way of persons appearing
as witnesses.
Muhammad Saeed Vs. Election Petition Tribunal (1957) 9 DLR (SC)
139(148).
—Appreciation of the evidence.
It is not proper for a court not to consider the evidence of witnesses
on their merits but to reject them for reasons which should not commend
themselves to a court of law. –
The fact that a certain witness is interested in the result of the suit
is no reason why evidence of the witness should be disbelieved.
Kalicharan Das Vs. Tamiruddin (1958)10 DLR 523.