The issue of a last Will and testament holds a distinct and crucial position in the legal sphere as it grants individuals the autonomy to determine the distribution of their assets posthumously. The Hon’ble Supreme Court, wielding its authority, has meticulously established a set of rules aimed at ensuring the authenticity of Wills executed prior to individuals’ deaths. Recognizing the pivotal role of Wills, the highest court in India has transcended conventional legal doctrines, crafting a meticulous framework that harmonizes the fidelity to a testator’s intentions with the imperative to guard against potential manipulation. This examination delves into the intricacies of the guidelines that courts must adhere to when adjudicating the genuineness of a Will.
Background of the Will: The Indian Succession Act, 1925 outlines rules for Wills, providing a framework for writing, executing, and regulating them. A Will, a legal document, dictates how your assets are distributed posthumously and can appoint guardians for minors. It’s crucial to work with a professional to draft and modify a Will, ensuring clear expression of intentions. Without a Will, assets follow the country’s laws, termed dying intestate, potentially impacting your family negatively. Creating documents aligning with your choices is essential to prevent unintended consequences for your family
Supreme Court’s guidelines on genuineness of Will: The Supreme Court has provided explicit guidelines for courts tasked with assessing the validity of a Will executed by an individual before their demise. These guidelines serve the crucial purpose of thwarting any potential manipulation in the determination of a Will’s legitimacy. Emphasizing the sacred value of a Will as a legal instrument facilitating the posthumous transfer of an individual’s possessions, the court underscored the inherent challenges due to the absence of the testator to elucidate the circumstances surrounding the Will’s creation. Consequently, stringent legal standards have been imposed to safeguard against any possible tampering. In this landmark decision, the Supreme Court articulated 10 pivotal guidelines to ascertain and establish the validity of a Will:
1. The Testator signed the Will out of his own free Will.
2. At the time of execution, he had a sound state of mind.
3. He was aware of the contents of the Will
4. The Will was not executed under any suspicious circumstances.

The court provided the following guiding factors for establishing a will’s credibility and execution:
1. Executed by Testator: The testator must carry out the will, and it must be their final will. Two aspects have to be considered: (1) that the Will is executed by the Testator, and (2) that it was the last Will executed by him.
2. Although mathematical accuracy is not necessary, it must satisfy the logical mind.
3. Signing of the Will: The will must adhere to every requirement outlined in Section 63 of the Succession Act. The testator’s signature or mark, the attestation of two or more witnesses, and the witnesses’ recognition of the signatures are all included in this.
4. Attestation: To demonstrate the Will’s execution, at least one attesting witness who is still alive and able to testify should be interviewed.
5. Evidence of Witnesses: The attesting witness shall confirm to both the testator’s signature and the witnesses’ signatures on the will in the testator’s presence.
6. Evidence of one Witness is sufficient: The testimony of additional witnesses may not be required if one attesting witness is able to establish the execution.
7. Suspicion surrounding the Will: The individual who is proposing the will (the propounder) is responsible for successfully dispelling any doubts that may exist regarding the will’s implementation.
8. Overall factors to be considered: When there are questionable circumstances, the “test of judicial conscience” is used. The testator’s awareness of the contents and effects of the will, their state of mind at the time of execution, and their capacity for free will are all taken into account.
9. Onus on the person who alleges: The burden of proof rests with the accuser if claims of fraud, fabrication, or improper influence are made. Even so, the proponent is still required to offer a convincing justification to dispel suspicion.
10. Suspicion should be real: Suspicious conditions must be true and legitimate, not just made up. Shaky signatures, mental infirmity, unequal property division, or the propounder’s large advantage from the will might all be considered suspicious factors.

The Supreme Court held that in order to prove the genuineness of a Will, it is not enough to examine a random witness who asserts that he saw the attesting witness affix his signature in the Will. Section 69 of the Evidence Act deals with proving the authenticity of a document in cases where no attesting witnesses are found. Under the said provision, it must be proved.
In a case involving a dispute over the legality of a Will made by Bahadur Pradhan, who is said to have afterward married Kamla Pradhan in place of his ex-wife Meena Pradhan, the court established these guidelines in favor of the latter. Meena Pradhan and her children’s appeal contesting the validity of the will was rejected by the court. Link:

https://main.sci.gov.in/supremecourt/2010/18141/18141_2010_11_1503_47199_Judgement_21-Sep-2023.pdf

Guidelines to be followed by Courts: A Will’s legality cannot be questioned merely on the grounds that some of the beneficiaries disagree with it. It is vital to comprehend in a legal context that dispositions made under a will are not covered by Article 14 of the Indian Constitution, which ensures equality before the law. In a case Swarnalatha & Ors. V, Kalavathy & Ors. Involving Mannar Reddiar and Adhilakshmiammal, who left wills outlining the distribution of their own property, this principle was
confirmed. The court determined that although the daughter Kalavathy in this case was not given all of the inheritance, this alone did not raise questions about the validity of the will’s execution. The court emphasized that it is not the court’s responsibility to judge whether the distribution of property among heirs is fair or equitable while evaluating the validity of a will’s execution.

Suspicion can be raised only when there are questions regarding the testator’s signature or their mental ability as it was held in Kavita Kunwar v. Pamela Mehta. Thus the apex court’s guidelines are to be followed by courts while deciding the matter of will.
There are certain basics of an Indian Will as per law which are laid down by the Indian Succession Act, 1925, and are as follows:
a) Every person who writes a Will must be of sound mind and above 18 years of age. This bars people of unsound mind and minors from drawing a Will.
b) Any person who is incapable of making a valid judgment or is in an inebriated state of mind by the reason of intoxication or illness where he is unable to understand the consequences of his acts is not allowed to draw a valid Will.
c) Any part of a Will that has been forced or induced to be made by force, coercion, or threat or whatever has not been drawn while writing a Will with free consent is invalid and not enforceable by law.

Signing:  A Will is required to fulfil all the formalities required under Section 63 of the Succession Act:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary
c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of such signatures
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required

Listing of Assets– Each Will must state a list of all assets which include property owned by the person making the Will (testator), the savings, shares, stocks, bonds and other financial assets owned. This should be done with utmost care and caution in order to not leave out any material information.

Division of Assets – The Will should state a clear and unambiguous system of division of assets listed in the Will so that no item is missed and there is no unnecessary dispute when the Will is set to be used. In case a minor has been given some asset, it is mandatory to appoint a custodian for the minor.

Doubtful Will: The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free will.
Suspicious circumstances must be ‘real, germane and valid’ and not merely ‘the fantasy of the doubting mind”. Whether a particular feature would qualify as ‘suspicious’ would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example 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 a substantial benefit, etc.

Conclusion: The Supreme Court’s directives on the authenticity of Wills in India establish a foundational framework for upholding the integrity of individuals’ intentions regarding the disposition of their property posthumously. These instructions underscore the importance of adhering to formalities, including the identification and signatures of witnesses, and assessing the mental competence of the testator. Crucially, the recommendations highlight that a beneficiary’s disagreement with another beneficiary, in isolation, does not raise doubts about the legality of a Will. Instead, the emphasis is placed on providing verifiable proof of inconsistencies in the execution of the Will.