11 October, 2017
A Will differs from contracts and other executed documents in one important aspect. Unlike other documents, a Will only takes effect from the death of the person who has made it (called the testator). The testator’s testimony is not available to determine whether the Will is valid and whether it constitutes the testator’s true intentions. Thus, the validation and interpretation of a Will is rather unique for the significance of surrounding circumstances, and the identity and status of parties.
This being the case, it becomes advisable not only to prepare a Will that is clear and legally valid, but also to ensure that if a challenge to the Will is anticipated, suitable safeguards to fortify it have been put in place. In this post, we discuss the legal grounds on which a Will may be challenged, and some of the commonly adopted precautions that testators may put in place to help validate their Wills and to assist in giving effect to their desired intentions.
Grounds for Challenge
After the testator passes away, the Will may be challenged before a Court by any person who claims to have an interest in the testator’s estate. If the Court finds, based on the evidence placed before it, that the challenge is sustainable, it will declare the Will void and set it aside.
One of the grounds on which a Will may be challenged is that the testator did not possess ‘sound disposing mind’. That is to say, he/she did not have the cognitive powers to understand the nature and effect of the dispositions made in the Will. In legal parlance, this is referred to as lack of ‘testamentary capacity’. Such challenges are particularly likely if the testator was old or infirm.
A Will may also be challenged on the ground that there was undue influence or coercion, which prevented the testator from exercising ‘free will’ in preparing the Will. Courts will also examine if the Will was a forgery or prepared by fraud.
To ascertain whether the Will is valid, Courts will examine all the surrounding circumstances which led to the preparation of the Will. If any circumstances appear to be ‘suspicious’, Courts are likely to be hesitant in declaring it valid. While it is not possible to enumerate an exhaustive list of suspicious circumstances – these include a shaky or doubtful signature, significant overwriting and strikethroughs, indications of feeble or debilitated mind of the testator, inexplicable absence of provisions for natural heirs, unnatural or improbable dispositions, and so on.
Need for Safeguards
The onus is generally on the person relying on the Will (heirs or executors) to prove the valid execution of the Will, and if there are any suspicious circumstances surrounding the Will (whether in the opinion of the Court or alleged in case of challenge), to explain them with satisfactory evidence. As noted above, the testator – having long departed – can no longer aid the heirs or executors except through material left behind.
Thus, if the testator anticipates that a Will may be questioned or challenged, in addition to writing a clear and unequivocal Will, it would be prudent to leave behind for the benefit of heirs/executors adequate supporting evidence. Some of these are discussed below.
Safeguards
Explain contentious bequests: Testators may choose to exclude natural heirs or distribute assets among heirs unevenly, which may seem unnatural or unfair to the Court – for example, if the testator has two sons, but bequeaths a bulk of the estate only to one. If the testator is making such a bequest, it would be prudent to explain the background and rationale for the same in the Will. For instance, explaining that one son is errant and hence, has been excluded from the Will. If there is personal literature, such as letters, executed simultaneously with the Will (including for the purpose of explaining the desires/thought process of the testator), it should be worded carefully to ensure that it is consistent with the Will and not suggestive of a contrary intention.
Avoid hand changes: Avoid striking out, overwriting or making interlineations by hand. If any such change is made, the signature or initial of the testator should be affixed in the adjacent margin.
Medical evidence: Following what is regarded as a ‘golden rule’ in England – where the testator is aged or suffering from illness (whether physical or cognitive), attach a medical certificate to the Will or procure a doctor to act as witness to the testator’s signature. The doctor should preferably be a family doctor or someone with whom the testator is well acquainted. This will help demonstrate that, in the opinion of a medical expert, the testator was of sound mind at the time of making the Will.
Destroy earlier Will: The presence of two Wills, although not contemporaneous in time, may lead to confusion as to which Will is valid. Hence, it is important to destroy an earlier Will once the new one is executed.
Videotaping: Record on video the entire process of execution and attestation of the Will. The video recording should cover the testator reading out the entire new Will, executing the Will in the presence of the witnesses, the witnesses signing the Will, and finally the testator destroying an earlier Will. If the testator is unable to read the Will, it should be read out to him/her and explained. The evidentiary value of the recording will be greater if: it is clear, visible and audible; there is no distortion or unnecessary editing; and the date and time are embedded. The device/tape containing the original recording should be kept in a sealed envelope along with the Will.
Registration: Although it is not mandatory to register a Will, it is often seen as an important factor supporting a Will’s genuineness and, more importantly, timing of execution. That said, registration by itself does not dispel all suspicion attached to a Will, nor does non-registration lead to the presumption that the Will is not genuine. Registration is a good practice, but by no means conclusive as to validity. If an earlier Will is registered, it would be preferable for the subsequent Will to be registered, although this is not legally a necessity.
It is recommended that the same safeguards that are put in place for preparing a Will are replicated when the Will is amended through a document called a codicil.
Conclusion
Implementing adequate safeguards for preparing a Will would certainly reduce the risk of a challenge being upheld and help give effect to the testator’s wishes. At the same time, please note that these are not formalities mandated by law to constitute a valid Will or codicil, but are instead precautions which Courts have regarded as helpful in supporting the validity of a Will.
Undoubtedly, Courts will also be appreciative if such safeguards are in place as these might help – in the words of a famous English judge – to considerably diminish the ‘ghosts of dissatisfied testators’ who ‘wait on the other bank of the Styx to receive the judicial personages who have misconstrued their Wills’!
For further information, please contact:
Radhika Gaggar, Partner, Cyril Amarchand Mangaldas
radhika.gaggar@cyrilshroff.com
