Explained: Suspicious circumstances in wills

Reading time: 8-10 minutes.

The Supreme Court noted that an unfair disposition of property or an unjust exclusion of the legal heirs, especially the dependents is considered as a suspicious circumstance. In the case of Kavita Kanwar vs. Pamela Mehta, the Trial Court and the High Court stated that the following were the unexplained suspicious circumstances concerning the Will in question in a probate proceeding initiated by a woman who claimed that her mother had executed it:

  • 1. That she, the major beneficiary, played an active role in the execution of the Will at issue and tried to conceal this fact before the Court;
  • 2. That there was no valid explanation why the testatrix’s only son and other daughter were not included in the execution of the Will and why they were excluded from the majority of the estate in question;
  • 3. That there was no lucidity about the construction which is assumed to be carried out by her;
  • 4. That the way the Will was written and executed with technical and legal terms was extremely doubtful and
  • 5.  That the witnesses who are attesting were unreliable, and there were discrepancies in the witnesses’ statements.

In appeal, the Apex Court noted that the Trial Court and the High Court cannot work against the viability of the propounded Will. It said that the pertinent assessment would be about the quality and nature of all of these aspects, and then the cumulative effect and impact of all of them on the testatrix’s free agency in making of the Will. In other words, an individual aspect might not be conclusive, but if, after considering all the aspects together, the Court’s morals is not satisfied that the Will in question actually reflects the testator’s last wishes and ideas, the Will cannot receive the Court’s approval; and, in other words, if, from a systemic point of view, the Court is satisfied that the document submitted as Will for sure signifies the last free wish and aspiration of the testator and is aptly executed in accordance with law, the Will shall not be disapproved only for one doubtful situations here or another factor there.

The court then analyzed each one of these situations thoroughly. Specifically, it mentioned that the Testatrix’s unequal distribution of assets by granting the daughter major share in comparison to her two other children (one of whom was her widowed daughter).

The court observed that no explanation had been provided as to why the testatrix should have found it acceptable to abandon her widowed daughter in the heap of confusion. The Court has said that the evidence does not help regarding the contention that the testatrix relationship with her son was tense. The court added that two other considerations complicate this unexplained disproportionate allocation of the property:  The appellant’s active role in the case; and second, the virtual exclusion of the testatrix’s other children throughout the phase.

The Will in question was shown to be a Holographic Will, where the testatrix duly writes the contents pertaining to the person’s circumstances and bequeaths in the opening and closing sections. Yet the Court acknowledged that the entire Will is in electronic print apart from the opening and closing sections, and that it does not react explicitly to the idea of a “holograph” Will.

The court concluded that the Will in issue is threatened by numerous suspicious circumstances that are of a specific type that have gone unexplained in type. The appeal was dismissed with costs of Rs 50,000.

Suspicious circumstances


Circumstances in the preparing or signing of a document which give rise to suspicion as to the signatory’s mental ability, or fraud or duress.

Suspicious circumstances such as the following may be considered to be surrounded in the execution of the Will.

1. Beneficiary participation in the preparation of the will

2.  Confidentiality and rapidity in the preparation of the will

3. An unknown change in the testator’s behavior toward others

4. The testator sign on blank papers

5. An abnormal and unjust disposition of property and

6. The testator’s signature may be trembling and uncertain or not appear to be his usual signature

7. The condition of the testator’s mind may be very weak and in infirm state at the pertinent time.

8. The dispositions may not appear to be the result of the testator’s free will and mind.

Circumstances of suspicion may result from circumstances concerning the preparing of the will, circumstances seeming to bring into question the capacity of the testator, or circumstances which indicate that the testator ‘s free will was overborne by actions of coercion or fraud.

It is essential that drafters of Will be aware of and observe for any suspicious circumstances that may exist when the instructions are taken. Preparing a will in the existence of suspicious circumstances merely raises the risk that in following years, the will drafts person might end up in testifying about the validity of the Will.

Relevant legal provisions

For this context, Sections 68 and Section 63(c) of the Indian Evidence Act are relevant.

Section 68 of the Indian Evidence Act says that if a document is bound by law to be certified, it shall not be used as evidence unless at least one attesting witness has been summoned for the purpose of proving its execution where an attesting witness is alive and subject to the Court’s proceedings and is able to give evidence. Given that it is not appropriate to call an attesting witness to prove the execution of any document which is not a will and is recorded in compliance with the provisions of the Indian Registration Act of 1908 (16 of 1908), unless it is specifically refused its execution by the individual by whom it claims to have been executed.

Section 63(c) of the Indian Evidence Act says that the will shall be attested by two or more witnesses, each of whom has seen the testator’s sign or affix his mark to the will or has seen any other person sign the testament in the existence and by the supervision of the testator, or has obtained from the tester a personal acknowledgment of his or her signature or mark or signature from that other person; and each of the witnesses shall sign the Will in the attendance of the testator, but it shall not be crucial that more than one witness to attend at the same time, and no specific form of attestation shall be essential.

In addition to these statutory provisions, other tests to show the execution of a Will in compliance with the Will must be fulfilled. Those are:

1) Did the testator signed the will?

2) Has he understood the nature and effect of the dispositions in the will?

3) Had he kept his signature to the Will by knowing what it contained?

Landmark judgements

Amara Venkata Subbaiah and Sons and Ors. v. Shaik Hussain Bi and Ors.

In this case, the issue is that whether it is valid to execute the Will in favour of Respondent? The AP High Court held that the Will is surrounded by suspicious circumstances and additionally claimed that the respondent had failed to clearly prove his execution and also had failed to describe and exclude all suspicious circumstances surrounding his execution. Consequently, execution of Will cannot be handled as a validly executed codicil, and it does not change the provisions made by the testator in any way. Thus appeal is permitted.

Jaswant Kaur v. Amrit Kaur and others 

The Supreme Court observed that the cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different basis. A shaky signature, a frail mind, an unequal and unreasonable disposition of land, the propounder himself playing a leading role in creating the will from which he derives a considerable profit and certain other situations cause doubt about the execution of the Will. It is a known principle of law that each decision shall be applied as per the facts and circumstances of the case in question.

PPK Gopalan Nambiar v. Balakrishnan Nambiar and others

The Supreme Court has held that there must be real, relevant and valid suspicious characteristics and not a fantasy of the dubious mind.

Joseph Antony Lazarus (dead) by LRs. v. A.J.Francis

The Supreme Court held that the failure to mention other testatrix’s sons in the Will while leaving the entire property to two sons only would lead to legitimate suspicious circumstances and further failure to examine the Advocate who drafted the Will and Sub-Register before whom the Will was provided for registration would also result in the suspicious circumstances.

Indu Bala Bose v. Manindra Chandra Bose 

The Supreme Court described the term “suspicious” in the following words  –

“Needless to clarify that every and all situation is not a ‘suspicious’ situation. A situation may be suspicious because it is not usual or is not expected naturally in a common case or is not expected from a regular individual.”

Adivekka and others v. Hanamavva Kom Venkatesh (dead) by LRs. and another

The Supreme Court stated that non-examination of the propounder often generates suspicious circumstances and due to that, unfavourable inference can be drawn.

Gurdial Kaur and others v. Katrar Kaur and others

The Supreme Court stated that the scribe of the Will in discourse had deposed that he had not known the executor of the Will and that some of the legitimate heirs had been disinherited in the Will for no cause whatsoever and therefore suspicious circumstances emerged.

Critical analysis

A Will which is covered by suspicious circumstances cannot be held to be a valid document. There are many factors like a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives benefit and other circumstances raise suspicion in the execution of the Will. There are some necessary methods like close observation and questioning of the testator which may sometimes reveal suspicious circumstances by which one can extract suspicious circumstances in the will. The extraction of these circumstances is also based on the work of will drafters.

Section 68 and Section 63(c) of the Indian Evidence Act are very much relevant for this purpose which gives clear-cut information for proving the execution of will without any suspicious circumstances. The Landmark Judgements serves the purpose as to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case.

In the case of Kavita Kanwar v. Pamela Mehta, Supreme Court held that in case of any unfair disposition or unjust exclusion of legal heirs in a will, it can be regarded as a suspicious circumstance. This Judgement added lucidity to the topic suspicious circumstances in wills.


There are suspicious circumstances in a vast array of situations and they are not necessarily menacing in nature. Often, a careful observation and questioning of the testator reveals some of non-exhaustive list of circumstances which could lead to the labeling of suspicious circumstances and thus reverses the burden of proof in a case of testamentary capacity.

Drafters should therefore spend even more time in questioning such a testator and in confirming documents and ownership documentation as to whether the suspicious circumstances are adequate to question whether the proposed testator has ample mental capacity.

Author: Chidige Sai Varnitha from Damodaram Sanjivayya National Law University.

Editor: Avani Laad from Symbiosis Law School, Pune.

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