That is especially the case where an expected beneficiary is disinherited under such a circumstance. As soon as capacity is called into question, the onus lies on the party propounding the Will to affirm testamentary capacity. Suicide, in itself, does not equate to testamentary incapacity — although it is a circumstance that may be considered. In fact, a testator may have testamentary capacity even if they are not of entirely sound mind.
That means that prior to committing suicide, a person can very well have testamentary capacity. If that is the case, then a death note can be considered a Holograph Will, which in Ontario, in accordance with section 6 of the Succession Law Reform Act , has the following requirements in order to be valid:.
There is no requirement for witnesses in the case of a Holograph Will and it must be that the testator intended to dispose of their property after death.
Kira Domratchev. Testamentary Capacity and Suicide. On an analysis of the oral and documentary evidence on record, the trial Court found that the Will deed at Exhibit was not free from doubt, particularly because the name and signatures of one of the attesting witnesses was scored out.
On this basis, the trial Court disbelieved the said Will and held that the application filed by the applicant herein was required to be considered simply, without taking into consideration the existence of the said Will. On this basis, the trial Court allowed the aforesaid application, holding that the applicant and respondent Nos. The applicant was aggrieved by the fact that the trial Court had granted share even to respondent No.
On this basis, the applicant filed Regular Civil Appeal No. By the impugned judgment and order dated , the appellate Court has dismissed the appeal and confirmed the order of the trial Court.
The appellate Court has framed points for consideration, including the point as to whether said Baban Wankhade had executed Will dated in favour of the applicant. The appellate Court took into consideration the evidence and material on record and found that attestation of Will as required under Section 63 c of the Act of , was not done in the present case and that the scribe of the Will who had appeared as witness, could not be treated as an attesting witness.
It was also found that the applicant did not enter the witness box and that her son-in-law appeared as Power of Attorney holder on her behalf. On this basis, the appellate Court confirmed the findings of the trial Court that the Will was not proved to the satisfaction of the Court and on that basis, it confirmed the order of the trial Court. It is significant that in paragraph 33 of the impugned judgment and order, the appellate Court has observed that grant of succession certificate would not create any exclusive right and title over the subject matter and that it was not a bar for any of the parties to raise an issue in a subsequent suit about right and title over such properties.
Aggrieved by the impugned judgment and order, the applicant filed the present revision application. On , the application was admitted by this Court on the following question of law Smita Deshpande, learned Counsel for respondent No. Shri Alaspurkar, learned Counsel appearing on behalf of the applicant submitted that the Courts below had committed a grave error in placing the burden on the applicant to prove the said Will dated , when there was no denial on behalf of contesting respondent Nos.
It was further submitted that, in any case, one of the attesting witnesses and the scribe of the Will had been produced as witnesses in support of the said Will and there was sufficient oral and documentary evidence on record to show that the aforesaid Will was a valid document.
According to the learned Counsel appearing on behalf of the applicant, Courts below have committed a grave error in disbelieving the said Will and that such adverse findings were based on erroneous appreciation of the evidence and material on record.
In support of his submission the learned Counsel for the applicant relied upon the judgments of the Hon'ble Supreme Court in the case of Vasant Balu Patil and others v. Narayanan Nair and others and Mahesh Kumar dead by Lrs v. Per contra, Shri Vaishnav, learned Counsel appearing on behalf of contesting respondent Nos. It was submitted that it was a mandate of the statute that the propounder of the Will proves the same to the satisfaction of the Court.
It was further submitted that the Courts below had correctly appreciated the evidence and material on record to come to the conclusion that the applicant had failed to prove the said Will, which was the only basis for her to deny the share to contesting respondent No.
It was further submitted that, in any case, the proceedings under the provisions of the Act of for issuance of succession certificate were necessarily summary in nature and that if the applicant was aggrieved by any findings rendered in such proceedings, she could very well agitate the same in a suit before the Civil Court, which could be considered and decided on its own merits.
It was pointed out that there were already two civil suits initiated between the parties, of which one was pending at the trial stage and the other at the appellate stage. It was contended that if the applicant had any grievance, she could very well agitate the same in the said proceedings. The learned Counsel appearing on behalf of contesting respondent Nos. Laxmanan v. Abdul Jabbar Sahib v. Venkata Sastri and Sons and others etc.
Kanakraj Gandhi v. Laxmidas Bhagwandas Mehta deceased through Lrs. The learned Counsel appearing on behalf of the applicant has vehemently argued that there was sufficient oral and documentary evidence placed on record by the applicant to prove execution, as also the contents of the said Will because one of the attesting witnesses was examined as also the scribe of the said Will.
According to the learned Counsel for the applicant there was sufficient compliance with the requirements of law and that the Courts below had committed an error in holding against the contentions raised on behalf of the applicant. The Courts below have found that the signatures and name of one of the attesting witnesses have been scored out.
The other attesting witness has indeed appeared before the Court and deposed regarding execution of the said Will deed and scribe had also appeared before the Court as a witness in support of execution of the said document. But, absence of second attesting witness, due to scoring out of his signatures and name, has been taken as a circumstance by the Courts below indicating that the said Will deed was not a document that could be believed. On the issue of who ought to be required to propound the disputed will, the court referred to the decision of Gillese J.
In discussing the principle of renunciation, the court stated at para. Intermeddling is the term used to describe the acts of a person who deals with an estate without having been formally recognized as the estate trustee. As Kennedy J. McGregor , 42 Man. Cummins , 8 I. However, this rule has been applied with some flexibility: see e.
Holder v. Holder , [] Ch. As the executors under the will have intermeddled in the estate, they are precluded from renouncing at this point. They are also obligated to propound the will as they were the ones with the most involvement in causing such a testamentary document to be drafted and executed. In this case the executors in the disputed will were involved in its creation and intermeddled.
It is not clear whether the court would have come to the same decision if the executors were not involved in the making of the will and did not intermeddle. A general lesson to be taken from this case is that anyone named as an executor in a will should seek legal advice as to the attendant rights and responsibilities before taking steps to act in that capacity.
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