Rohit Bal succession controversy: what are the elements of a valid will?

What are the elements of a valid Will? Can a Will be challenged in court? Have there been notable disputes over a Will in the past?

Wills under the Indian Succession Act, 1925

The subject of ‘testamentary succession’ — the division of assets when the deceased has left behind a Will detailing her last wishes — is governed by the Indian Succession Act, 1925 (ISA). Under the ISA, “Every person of sound mind not being a minor may dispose of his property by will” (Section 59) and will apply to wills made by all Hindus, Sikhs, Buddhists, and Jains after January 1, 1927.

The ISA also allows the maker of a will to revoke or alter it ‘at any time’ so long as they are still competent to make a Will under Section 59. If there are multiple valid Wills written by the same person, the one that was executed last will be valid.

Rohit Bal’s alleged Will must also meet the conditions required of an ‘unprivileged will’ (a will made by anyone who is not an active soldier, airman or mariner at sea) under Section 63 of the ISA. It must include the signature of the maker or ‘testator’ (or another person at the direction of the testator), and it must be attested and signed by two witnesses in the presence of the testator.

Further, each witness 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”.

If the entire Will or a part of it was made “by fraud or coercion, or by such importunity as takes away the free agency of the testator”, that portion will be made ‘void’ — treated as if it never existed (Section 61).

About Rohit Bal’s contested Will

Tehlan claims that the Will is foolproof, was made by Rohit Bal when his mind was sound, and was attested by witnesses. He has also claimed that he has photographic evidence of the signing. Tehlan’s lawyer Gurmukh Chaudri told The Indian Express that while he has not seen the photos, he has seen the signed document and that it “appears to be valid”.

The Will has reportedly designated Sunil Sethi, Chairman of the Fashion Design Council of India (FDCI), as the ‘executor’. Though not compulsory, a testator will often designate an ‘executor’ who is responsible for carrying out the instructions given in the Will. The Indian Evidence Act, 1872, also states that any document that requires attesting witnesses (like a Will), cannot be used as evidence “until one attesting witness at least has been called for the purpose of proving its execution”. The executor will be responsible for ensuring a witness appears to prove the Will was properly signed.

Sethi told The Indian Express he was unaware that he was entrusted the executor of Rohit Bal’s will until Tehlan and his lawyer informed him. “I have not yet seen the will because of some personal emergency but I must say, Tehlan and his lawyer have been only too willing to show it to me. If Rohit had indeed intended me to be executor of the will, then I am committed to following the due process of law and honouring his wish,” he said.

Rajiv Bal also responded to Sethi’s nomination positively. “He told me he had been named its executor though he, too, was not aware of it. I trust Sunil and let’s see the document first,” he says.

Challenging a Will drafted under ‘suspicious circumstances’

A Will can be challenged on several grounds including the non-fulfillment of the requirements under Sections 59 or 63. The Supreme Court has also expanded on what would amount to a ‘suspicious circumstance’ to declare a Will invalid under Section 61 of the ISA.

In the case of H. Venkatachala Iyengar vs B. N. Thimmajamma (1958), the court held that proof of a valid will cannot be “mathematically precise” and that the court will have to apply a “prudent mind” to test its validity. It also clarified that there is no list of specific ‘suspicious circumstances’ and that the court will have to look at the allegations on a case-by-case basis.

An example of how the court might determine ‘suspicious circumstances’ can be found in the case of Kavita Kanwar v Pamela Mehta (2020). The Supreme Court was hearing a case where a mother in her Will had unequally distributed her property between her three children, bequeathing a major share to one child. Referring to past decisions, the court held that “an unfair disposition of property or an unjust exclusion of the legal heirs, particularly the dependants, is regarded as a suspicious circumstance”. The court also noted that the child who benefited the most played an “active role” in making the Will.