Ark & Ors v Kaur & Ors

To establish knowledge and approval of a will, the propounder must prove that the testator knew he was making a will, knew its terms and intended them to take effect. Suspicious circumstances require closer scrutiny only where they have some relevance to the preparation or execution of the will. They do not replace proof of fraud or dishonesty. Undue influence in this context means coercion. The opponent bears the burden of proving that coercion caused the will, and an inference of coercion must be the only reasonable inference from the proved facts. Legitimate persuasion, appeals to family ties and efforts to influence a testator remain lawful. In construing a will, general words such as property situated wherever else should not be confined to a particular country without sufficient textual justification.

The claimants sought probate of an alleged will made by Tarsem Singh Ark in India shortly before his death. The will left his land and properties to his son and money in various accounts to his grandsons, leaving his daughters nothing. The third defendant challenged the will on the grounds that Tarsem had not executed it, lacked knowledge and approval, or had acted under undue influence. Alternatively, she contended that the will dealt only with property in India and that English property passed on intestacy. The court had to determine the will’s validity, the alleged coercion, and the proper construction of its territorial wording.

1. The court accepted the evidence of the deed writer, the attesting witnesses and the sub-registrar. Tarsem personally instructed the deed writer, confirmed the contents after they were read to him, signed in the presence of the witnesses and later confirmed before the sub-registrar that he understood and freely made the will. Due execution was therefore established.
2. The propounder proved knowledge and approval. The relevant question was whether Tarsem knew that he was making a will, knew its terms and intended those terms to be incorporated and given effect. Matters concerning family relationships, expected inheritance, or the wisdom of the dispositions did not materially undermine the direct evidence of execution and approval.
3. Suspicious circumstances were not unlimited. They must have at least some relevance to the preparation or execution of the will. The circumstances relied upon here either had little weight or did not relate to that process.
4. Undue influence meant coercion. The defendant had to prove that coercion was applied and caused the will. The evidence showed, at most, family persuasion and appeals to kinship. It did not establish coercion, nor was coercion the only reasonable inference. The allegation was rejected.
5. The words referring to property situated wherever else were general and included Tarsem’s English properties. The court declined to confine them to land in India. The court also declined to use evidence of Tarsem’s subjective intention in construing the executed document.
6. The court pronounced for the will.