Report No. 110
VI. Flaws in a Will Affecting the Reality of Consent
12.30. Analysis of section 61.- Section 61 reads-
"61. A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void."
(Illustrations to the section have not been quoted).
The section deals with three vitiating factors in a will
(iii) such importunity as takes away the free agency of the testator.
12.31. Section 61-Free choice in testamentary dispositions.-
In order that a will may be valid, a person must not only possess testamentary capacity (age and sound mind), but also exercise his genuine free choice in the making of the will. Lack of free will is the subject-matter of section 61. In England, it is stated that where a will is accompanied by force, fraud, fear or undue influence, the will or the affected part which is produced in this way, is not regarded as the act of the testator, and so probate is refused to such a will1.
1. Mellows The Law of Succession, (1977), p. 64.
In the case of fraud, the mind is not overborne, but is misled. Cases relating to fraud broadly fall into two categories, namely, first, where the fraud is as to the nature of the relationship existing between the testator and the beneficiary1, and secondly, where the fraud creates a false impression in the mind of the testator about the natural objects of his bounty, thereby leading to the exclusion of those natural objects of bounty or some of them2.
1. Posner (in re:), 1953 Probate 277: (1953) 1 All ER 1123 (reviews case law).
2. Boyes v. Rosshorough, (1857) 10 English Reports 1192 (1213).
12.33. Fraud is not easy to define and the definition in the Contract Act is not generally regarded as very satisfactory1.
1. Section 16, Indian Contract Act, 1872
12.34. No change needed as to "importunity".-
So far as the substance of the matter goes, courts have, in general, given a wide meaning to that part of the section which deals with 'importunity', and it may not be wise to introduce any rigid definition of that expression. Some of the judicial deCisions have mixed up "coercion"1 and 'importunity', but there is nothing to which any such mixing up can be attributed. In India, the sole question to be considered in this context is, whether the testator was "able to know" what he did by the will. This is precisely what illustration (ii) to the section provides.
1. Gajendra Naik v. Chowdhri Birabar, ILR 1967 Cut 563.
12.35. Orissa case.-
In an Orissa case1, it was contended that the will had been executed under undue influence, because for some time the testator (father) had been living in the house of the legatee (daughter), and during that period the will was brought into existence. The High Court, holding that there was no case of undue influence here, and after considering illustration (viii) to section 61, observed:-
"It is very natural that a lather would live with his daughter. The mere fact that the father resided with the daughter, or he had affection for her, or that the daughter treated the father with hospitality and cordially, would not amount to undue influence."
1. Gajendra Naik v. Chowdhri Birabar, ILR 1967 Cut 563 (568) (DB).
12.36. Coercion in the Contract Act.-
In the Contract Act1 'coercion' is defined as committing or threatening to commit any act forbidden by the Indian Penal Code or the unlawful detaining or threatening to detain any property to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. It is not clear whether that definition will apply also to section 61, Succession Act.
1. Section 15, Indian Contract Act, 1872.
12.37. Meaning of 'importunity'.-
As regards 'importunity' mentioned in section 61, it must be such as takes away the free agency of the testator. Beyond this, the exact scope, of that concept is not defined in the section. It would cover that kind of influence which the Indian Contract Act has described as "undue influence"1 but it seems to be wider in its scope than undue influence.
While illustration (v) to section 61 (which illustrates the concept of importunity), does not go beyond what the Contract Act has described "as undue influence", illustration (vi) to the section seems to go beyond that concept. According to that illustration, if a person, "being in so feeble a state of health as to be unable to resist importunity", is pressed by another person to make a will of certain purport, and does so merely to purchase peace and in submission to that other person, then the will is invalid.
1. Section 16, The Indian Contract Act, 1872.
12.38. Duress in England.-
In England, 'duress' is a vitiating factor in regard to wills. The common law conception of duress (threat of physical harm), however, was so limited that injustice could result, since a person could be imposed upon by subtle methods which lay outside the scope of duress. The Court of Chancery, therefore, formulated the doctrine of "undue influence", whereby a transaction could be set aside in equity on that ground and money paid or property transferred thereunder could be recovered1.
1. Goff and Jones Law of Restitution, (1878), p. 192.
12.39. Analysis in Privy Council case.-
In an appeal heard by the Privy Council from the Supreme Court of New South Wales1, Lord Wilberforce and Lord Simon of Glaisdale, in their dissenting opinions, analysed the various concepts vitiating consent. The observations were made in the context of the defence of duress, but the analysis is of general applicability and reads as follows:-
"The basis of the plaintiff's claim is, thus that though there was apparent consent there was no true consent to the agreement: that the agreement was not voluntary.
This involves consideration of what the law regards as voluntary, or its opposite; for in life, including the life of commerce and finance, many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act. Absence of choice in this sense does not negate consent in law; for this, the pressure must be one of a kind which the law does not regard as legitimate.
Thus, out of the various means by which consent may be obtained-advice, persuasion, influence, inducement, representation, commercial pressure-the law has to come to select some which it will not accept a reason for voluntary action: fraud, abuse of relation of confidence, undue influence, duress or coercion. In this the law, under the influence of equity, has developed from the old common law conception of duress-threat to life and limb and it has arrived at the modern generalisation expressed by Holmes J.-"subjected to an improper motive for action".2
1. Barton v. Armstrong, (1979) 2 WLR (PC) 1050 (1063).
1. Fuirbanks v. Snow, 13 NE Reporter 596 (598).
12.40. Probate doctrine of undue influence.-
However, it must be noted that the probate doctrine of undue influence is more circumscribed than that of equity. In probate law, the undue influence must "amount to force and coercion, destroying of free agencies-it must not be the influence of affection and attachment-it must not be the mere desire of gratifying the wishes of another; for that would be a very strong ground in support of a testamentary act"1.
1. William v. Goude, (1828) 1 Hag Ecc 577 (581) (Sir John Nicholl).
12.41. Undue influence in England and India.-
It was said in one of the English cases1-
"The law bearing on this subject is uncontested undue influence is the control of another's will over a person whose faculties have been so impaired as to submit to the control of such another person, so that the party making the will has ceased to be a free agent, and has adopted the will of the controlling party."
In India, it is needless to say, the wording of section 61 should govern the matter.
1. Lovetty v. Lovetty, 1857 F&F 581.
12.42. Indian case law-use of the expression "undue influence".-
Unfortunately, judicial decisions in India on the expression importunity' do not adhere to the precise language of section 61. Many of the judgments speak also of "undue influence"-an expression which does not occur in section 61, though it is used in this context in English case law. For example, one comes across decisions which emphasise that 'undue influence' must have been exercised in relation to the will itself,1 or that religious influence may sometimes amount to undue influence2, or that the burden of proving that the will was executed under 'undue influence' is on the party making that allegation3.
In one reported case4-which, however, was not governed by the Act-testamentary documents were challenged on the ground of undue influence and it was stated that there must be evidence to show coercion.
1. Nabagopal v. Sarnia, AIR 1933 Cal 574 (577).
2. Shrimati Basini v. Krishan Lal, 51 IC 1007 (Cal).
3. (a) Naresh v. Paresh, AIR 1955 SC 363 (364) on appeal from ILR (1952) 2 Cal 56; (b) Ajit Chandra v. Atul Chandra, AIR 1963 Cal 551 (552).
4. Sola Mahomed v. Dame lanbai, ILR 22 Born 17 28 (PC), (Case outside Succession Act, relating to Khoias).
12.43. Privy Council case.-
In the leading Privy Council case of Bur Singh v. Uttam Singh, 1911 ILR 38 Cal 355 (PC), the test laid down to ascertain undue influence was as follows:-
"In order to set aside a will there must be clear evidence that the undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property."
12.44. Reported cases as to importunity.-
A few reported cases which illustrate the scope of the section in regard to importunity may be referred to.
In a Bombay case1 on the death of a person issueless, his widow brought a suit for the possession of his properties. The defendant resisted the claim of the widow, on the basis of a will in favour of the defendant. From the evidence on record, the Court came to the conclusion that it was the defendant who got the will prepared, and he was the largest beneficiary under it. The question for consideration before the Court was whether the will was duly executed by the testator, as set up by the defendant. Citing an English case2, the Court said that the principles of law on which a Court should rely were as follows:-
"The first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second is that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed and is judicially satisfied that the paper propounded does express the true will of the deceased. Every influence exercised is not undue influence."
The High Court quoted with approval, the observations in a Privy Council case3, where it was said that the burden of proving undue influence is not discharged by merely establishing that a person has the power unduly to overbear the will of the testator. It must be shown that in the particular case the power was exercised, and that it was by means of the exercise of that power that the will was obtained. The High Court held that "undue influence, in order to invalidate a will, must amount to coercion or fraud. Its existence must be established as a fact and it must also appear that it was actually exercised on the testator."
On this reasoning, it was held that undue influence was not proved.
1. Rangavva v. Sheshappa, AIR 1927 Born 228.
2. Tyrrell v. Painton, 1894 Probate 151: 70 LT 453: 42 WR 343.
3. Craig v. Lamourux, AIR 1919 PC 32.
12.45. No change needed.-
The above discussion of the case law was intended to indicate the precise scope of the section, no change in the law being intended.