A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. It is a legal declaration, unilateral and strictly personal act. It must be a declaration of an intention to dispose of his property after his death. All persons of sound mind, not being minor and who are not expressly prohibited by law may make a will. But under the Indian Succession Act, 1925 a will obtained by fraud, coercion, undue influence or importunity are invalid. In this article, we shall discuss void wills.

Void Wills Under Section 59:

According to Section 59 of the Act, every person of sound mind not being a minor may dispose of his property by will. Thus will executed by minor or made in state of unsound mind are void.

Illustrations:

1. A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but has not a competent understanding as to the nature of his property, or the persons who are of kindred to him, or in whose favour it would be proper that he should make his will. A cannot make a valid will.
2. A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid will.
3. A, being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property, makes a will. This is a valid will.

A minor is a person who has not completed the age of 18 years and is not capable of making wills. The Indian majority act of 1875 applies to all persons including Hindus and Muslims so far as the competency to make a will is concerned. A minor is incapable of disposing of his property by will. Thus will executed by a minor is void.

Will executed in the state of unsound mind is void. If the testator is not of sound mind at the time of the execution of a will, then the will is invalid regardless of his state of mind before or after such execution. In other words, the will of an incapable is not validated by the supervening of capacity.

All persons of sound mind, not being minor and who are not expressly prohibited by law may make a will. It shall be sufficient if the testator was able at the time of making the will to know that:  

1. The testator must understand that he is giving his property to one or more objects of his regard.
2. He must understand and recollect this extent of this property and
3. He must also understand the nature and extent of claims upon him both of those whom he is including in his will and those whom he is excluding from the will.

Void Wills Under Section 61:

As a will is one of the most solemn of all legal documents, whereunder a dead person entrusts the carrying out of his wishes to the living, it becomes absolutely imperative that such a document should have been the result of his free volition Therefore, S. 61 declares as void any will prompted by any factor (such as fraud or coercion) which takes away the free agency of the testator.

According to Section 61 of the Indian Succession act, 1925, 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.

Illustrations:

1. A, falsely and knowingly represents to the testator, that the testator’s only child is dead, or that he has done some undutiful act and thereby induces the. testator to make a will in his, A’s favour; such a will has been obtained by fraud, and is
2. A, by fraud and deception, prevails upon the testator to bequeath a legacy to him. The bequest is void.
3. A, being a prisoner by lawful authority, makes his will. The will is not invalid by reason of the imprisonment.
4. A threatens to shoot B, or to burn his house or to cause him to be arrested on a criminal charge, unless he makes a bequest in favour of C. B, in consequence, makes a bequest in favour of C. The bequest is void, the making of it having been caused by coercion.
5. A, being of sufficient intellect, if undisturbed by the influence of others, to make a will yet being so much under the control of B that he is not a free agent, makes a will, dictated by B. It appears that he would not have executed the will but for fear of B. The will is invalid
6. A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will of a certain purport and does so merely to purchase peace and in submission to B. The will is invalid.
7. A being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B.
8. A, with a view to obtaining a legacy from B, pays him attention and flatters him and thereby produces in him a capricious partiality to A. B, in consequence of such attention and flattery, makes his will, by which he leaves a legacy to A. The bequest is not rendered invalid by the attention and flattery of A.

In Totaram Maharu vs Ramabai. AIR 1976 Bom 315 case, the Court has laid down that the person wishing to prove a will has to prove both due execution, as well as the testamentary capacity of the testator, and that once these are established, the onus which rests on such a person is discharged. If, however, there are suspicious circumstances surrounding the execution of the will, it would be necessary to satisfactorily explain such circumstances before a probate of the will can be granted. Suspicious circumstances may be said to exist where, for instance, the signature is doubtful, or the testator was in a feeble state of mind or the disposition in the will appeared to be unnatural or improper, or if the person deriving substantial benefits under a will, had played an unduly prominent part in its execution. However, it is not possible to draw any sinister inference only from the fact that the will was not known to the testator’s wife. Similarly, the fact that the propounder was the general mukhtyar of the testator cannot, by itself, be said to be a suspicious circumstance.

Fraud:

According to Section 17 of the Indian Contract Act, a ‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:

1. the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
2. the active concealment of a fact by one having knowledge or belief of the fact;
3. a promise made without any intention of performing it;
4. any other act fitted to deceive;
5. any such act or omission as the law specially declares to be fraudulent.

Fraud is sub divided into two parts:

• Misrepresentation: Misrepresentation is the action or offence of giving a false or misleading account of the nature of something. Misrepresentation is suggestio falsi (suggestion of untruth).
• Concealment: Concealment is the fact or crime of not providing information that a court, customer, insurance company, etc. has a legal right to know. Concealment is Suggestio veri (suppression of truth).

Will obtained by fraud is void.

In Parbati v. Sheo Bali, AIR 1926 Oudh 262 case. a testator was persuaded to deprive his wife of any share in his property on a misrepresentation made by his nephew that his wife was unfaithful, unchaste and did not care for him. As a result, the testator made a will bequeathing all his property to the nephew. The Court held that the will was invalid.

Illustration:

A, falsely and knowingly represents to the testator, that the testator’s only child is dead, or that he has done some undutiful act and thereby induces the testator to make a will in his, A’s favour; such will has been obtained by fraud, and is invalid.

Coercion:

According to Section 15 of the Indian Contract act, ‘Coercion’ is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. Whatever destroys the free agency of the testator, constitutes coercion.

Illustration:

A threatens to shoot B, or to burn his house or to cause him to be arrested on a criminal charge, unless he makes a bequest in favour of C. B, in consequence, makes a bequest in favour of C. The bequest is void, the making of it having been caused by coercion.

In Allen v. Mapherson, (1845) 1 H. C. C. 191  case, the Court held that if certain clauses of a will were written due to coercion, such clauses were invalid, but the rest of the will stood as a valid document.

Undue Influence:

According to Section 16 of the Indian Contract Act, a contract is said to be induced by ‘undue influence’ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

Illustration:

A, being of sufficient intellect, if undisturbed by the influence of others, to make a will yet being so much under the control of B that he is not a free agent, makes a will, dictated by B. It appears that he would not have executed the will but under undue influence of B. The will is invalid.

In Totaram Maharu vs Ramabai. AIR 1976 Bom 315 case, the Court held that in order to vitiate a will on the ground of undue influence, it is not sufficient to show that the propounder of the will was in a position to exercise such influence or had the opportunity or chance of exercising it It is further necessary that there is evidence to show that such undue influence was in fact exercised on the testator

Importunity:

Importunity means persistence, especially to the point of annoyance.

Illustration:

A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will of a certain purport and does so merely to purchase peace and in submission to B. The will is invalid.

A, with a view to obtaining a legacy from B, pays him attention and flatters him and thereby produces in him a capricious partiality to A. B, in consequence of such attention and flattery, makes his will, by which he leaves a legacy to A. The bequest is not rendered invalid by the attention and flattery of A.

Mistake:

There is no provision under this section or any other section of the Act for a will made under a mistake. But under English law, a will executed by mistake is void.

Void Wills Under Section 66(h):

Under S. 66(h) of the Act, If, after making a privileged will by word of mouth (oral), the testator lives for more than one month, after the testator has ceased to be entitled to make a privileged will, such oral privileged will becomes void.

Void Wills Under Section 89:

Under Section 89 of the Act, a will or bequest not expressive of any definite intention is void for uncertainty.

Illustration:

If a testator says “I bequeath goods to A,” or “I bequeath to A,” or “I leave to A all the goods mentioned in the Schedule” and no Schedule is found, or “I bequeath “money,’ ‘wheat,’ ‘oil,’” or the like, without saying how much, this is void

Under this section, a bequest may be void either because the objects are uncertain, or because the subject-matter of the bequest is uncertain. Thus, a will which does not express any definite intention is void. So also, if there are two inconsistent wills of the testator. bearing the same date, and there is no proof as to which one was executed later (on that day), then both the wills may be regarded as void (in which case, the testator will be deemed to have died intestate.

Conclusion:

According to Section 59 of the Act, every person of sound mind not being a minor may dispose of his property by will. Thus will executed by minor or made in state of unsound mind are void. SAccording to Section 61 of the Indian Succession Act, 1925 a will obtained by fraud, coercion, undue influence or importunity are void. Under Section 89 of the Act, a will or bequest not expressive of any definite intention is void for uncertainty.