30 March, 2017
A Will is one of the most frequently used tools in the process of succession planning. A Will is made by testators at the appropriate stage(s) of their life, and usually benefits family. However, a fear that looms large in their mind is the risk that someone may challenge the Will, causing it to get stuck in the labyrinth of the Indian court system. This fear is likely to be more acute when the testator knows that there is a specific person, either within the family or outside, who may challenge the bequests (or lack thereof!) under the Will. Unfortunately, there are many instances of such messy and protracted disputes. The main victims who suffer in these disputes are the testator’s family – they will not inherit the estate until the dispute is settled. Hence, the testator’s fears are completely justified.
To avoid these consequences, one option the testator can explore is entering into a contractual waiver with such persons – whereby any one or all of the beneficiaries (those who may benefit under the testator’s will, family or non-family) forego their right to challenge the Will. This would mean that the family can inherit the estate smoothly and quickly, without dispute or hassle.
But why would a beneficiary agree to do so? It ultimately comes down to a commercial decision and negotiation. Beneficiaries will be concerned that certain assets or amounts from the estate should come to them (for reasons which may not always be robust, or which may withstand a deeper legal scrutiny). If the testator can agree to meet such requests through the Will, or even by way of a lifetime transfer, then the beneficiaries may be willing to enter into a contractual waiver of their right to challenge it. But this is a commercial decision that needs to be taken by both parties. Testators are ultimately buying peace for their family after death. This article further explores the legality and practical aspects of such a waiver.
Legality of Waiving Your Statutory Right to Challenge a Will
The right to challenge a Will, or the right to challenge the grant of probate, comes from the Indian Succession Act, 1925 (Act). The Act confers on persons with an “interest” in the estate of the testator seeking to challenge the validity of the Will, the right to file a caveat against the grant of probate. This right is available to any individual with a “caveatable interest”.[1] While the Courts have expressed conflicting views on the interpretation of the term, the common understanding is that anyone with even the slightest interest in the estate of the testator, or anyone whose rights are prejudiced by the grant of probate, is considered to have a caveatable interest and is entitled to oppose such a grant. This covers the family of the testator, namely the spouse, children and mother who would be ‘Class 1 heirs’. At a wider level, it includes siblings, father and other relatives as ‘Class 2’, etc. Other parties considered to have a caveatable interest include creditors, business partners, employees etc – hence, the ambit of people who may potentially challenge the estate is extremely broad.
When someone with a caveatable interest challenges a Will, the probate petition gets converted into a normal civil suit, wherein the caveator is the defendant and the petitioner, who had previously applied for grant of probate, is the plaintiff. The burden of proof that the Will is valid is on the party that applied for a probate (namely, the executor of the Will).
The Supreme Court of India has, in several cases, laid down the principle that a mandatory provision in a statute or a statutory right can be waived if the same is aimed to safeguard the interest of an individual and has not been conceived in public interest.[2] The right to oppose the grant of probate is essentially the right of individuals to assert their own interest or claim over the estate of the testator; and cannot be said to have been conceived in the interest of the public at large. The benefit of exercising the right accrues only to the individual and not to the public. As such, in terms of the test laid down by the Supreme Court, it is possible to waive the right to oppose the grant of probate by an agreement.
For example, in Bharat Kumar Amritlal Sayani & Anr. v. Jayantilal Kalidas Sayani & Ors[3], the High Court of Calcutta did recognize that it is legally permissible to waive the right to challenge a Will. In the said case, the heirs who had previously signed a declaration stating that they had no objection to the grant of probate, attempted to challenge the Will subsequently on procedural grounds. It was held that they had waived their rights to challenge the Will, and therefore the Will was declared valid. Hence, there is already one strong precedent of this in the Indian system.
English Courts have recognized the validity of contractual arrangements between beneficiaries pertaining to distribution of assets of the testator, so long as there is no uncertainty and there is a clear intention to create legal relations.
Practical Aspects
In a purely family context, a contractual waiver of the right to challenge a Will can be made by signing a family arrangement / agreement, whereby a set of members abandon all claims to certain (or maybe even all) properties and acknowledge that the title to such properties vests in only one member[4] – namely, the testator. And further that the testator can dispose them of under the Will without challenge, in return for some other consideration, which may be given to the concerned members.
Whilst the determination of the validity of a contractual waiver would depend on the facts of each case, such a waiver is usually considered to be legally valid if it has the following elements:
- An intentional relinquishment of a right;
- A conscious abandonment of an existing legal right, privilege, benefit or claim, which if not for the waiver, the party could have enjoyed;
- A clear and unambiguous agreement not to assert a right; and
- Complete knowledge on the part of the parties waiving the right, regarding the rights they are intentionally abandoning.
As is the case with any contract, a contractual waiver here can be challenged on grounds like fraud, coercion, undue influence, etc. However, barring these extreme cases, the Courts are otherwise amenable to the idea of such contractual waivers. For nervous testators seeking to prevent disputes and secure their family’s future, a contractual waiver of certain persons’ rights to challenge their Will may prove to be a prudent option.
[1] Shri Jagjit Singh and Ors. v. Mrs. Pamela Manmohan Singh (2010) 5 SCC 157.
[2] Krishan Lal v. State of J & K 1994 4 SCC 422.
[3] (2012) 1 CALLT 234 (HC).
[4] Kale and Ors. v. Deputy Director of Consolidation and Ors. AIR 1976 SC 807.
For further information, please contact:
Rishabh Shroff, Partner, Cyril Amarchand Mangaldas
rishabh.shroff@cyrilshroff.com
