Can a WILL be ringfenced against any possible future litigation?

The Supreme Court too did recognize that it is legally permissible to waive the right to challenge a WILL.

WILL is by far the most accepted and popular testamentary document, which enables distribution of assets and wealth of the deceased testator (the person making the WILL) to designated beneficiaries. Technically every WILL carries the risk of being challenged in a court of law.

WILLs stand to be challenged on the following common grounds:   signature taken under coercion or undue influence or under duress to the relatively complex stand of being made under suspicious circumstances. Apart from these, witnesses being fictitious not knowing what they were witnessing and forged signatures or non-existent witnesses. All this happens due to ill-feeling by a few/some beneficiary(ies) of being cheated/deceived of inadequate bequeath in comparison to their peer beneficiaries.

Asset/wealth owners make a testamentary document so that they can distribute their assets/wealth as per their wishes and by documenting the same, implementation ease is expected to be attained. Litigation by few/some beneficiaries only defeats the  purpose of making the WILL impacting other beneficiaries.

In order to make the WILL water tight, testators have been resorting  to incorporate a clause aimed to disincentivise any beneficiary wanting to challenge the document.

Better known as “in -terrorem clause” or no-contest clause or forfeiture clause, it would typically state — “If any of the beneficiaries under my WILL challenges or disputes my WILL, then the beneficiary concerned shall cease to be a beneficiary and his/ her share in the assets would either be bequeath to a specific person/entity or be redistributed amongst the other beneficiaries in a specified ratio.”

Overpowering the court’s ruling? Not quite

Courts refrain from enforcing the “in -terrorem clause”,  which prima facie seem to be a "mere" threat. Courts would verify whether the objective of the “in -terrorem clause” is aimed to oust its jurisdiction to enforce a right that (a) the deceased conferred in the WILL or (b) that is granted by law.

Under Article 14 of the constitution of India, the fundamental right to equality before law or equal protection of law within the territory of India cannot be diluted in any form or manner. Hence, an “in -terrorem clause” must allow an application by aggrieved beneficiary to the competent court of jurisdiction seeking interpretation or enforcement of the WILL. If in any case the WILL is proved to be invalid, by court, then the “in -terrorem clause” being a part of the document stands to be invalid as well.

The Indian Succession Act, 1925, and the Hindu Succession Act, 1956, govern the rights of inheritance of Indian assets (as per the religion on birth of the deceased testator) and neither of these laws recognise the concept of “in -terrorem clause”. Such clauses are inserted more as a precautionary measure to have a more persuasive value in a court of law. Accordingly, unless specifically given up, the right is always available to a legal heir to challenge an estate of Indian assets.

The right to challenge a WILL, or grant of probate, comes from the Indian Succession Act, 1925, which confers on persons with an "interest" in the estate of the testator seeking to challenge validity of the WILL and right to file a caveat against the grant of probate. This right is available to any individual with a "caveatable interest" [Shri Jagjit Singh and Ors. v. Mrs. Pamela Manmohan Singh (2010) 5 SCC 157.]

In  the case of Bharat Kumar Amritlal Sayani & Anr. v. Jayantilal Kalidas Sayani & Ors [ (2012) 1 CALLT 234 (HC) the Calcutta High Court did recognise that it is legally permissible to waive the right to challenge a WILL. The heirs, who had previously signed a declaration that they had no objection to grant of the probate, attempted to challenge the WILL subsequently on procedural grounds. It was held that they had initially waived their rights to challenge the WILL, and subsequently the document was held to be valid.

The Supreme Court, too, did recognise that it is legally permissible to waive the right to challenge a WILL. In several cases, it has 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 [Krishan Lal v. State of J & K 1994 4 SCC 422].

When someone with a caveatable interest challenges a WILL, the probate petition gets converted into a normal civil suit, with the burden of proof of validating the document being on the party that applied for a probate (namely, the executor of the WILL).

Also read | Why writing a Will is crucial for your estate planning

Should one include an 'in-terrorem' clause in  a testamentary document?

Drafting testamentary documents that can with stand legal scrutiny and stress is of critical importance. Replicating a WILL of an acquittance or family member or using software tools to draft the document could prove disastrous. Each family is distinct with diverse situations and "no one-size-fits-all" clause apply. A no-contest clause needs to be appropriately drafted to suit the specific family need/situation and address a possible circumstance, which could emerge on demise of the testator. The clause should be precise, clearly articulating and defining testators’ apprehension of possible reasons for litigation/challenge in court.

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The author is Founder & Initiator, Inheritance Needs Services Pvt. Ltd.