A tale of two wills: Baba Kalyani vs Gaurishankar over mother's will

When there are two wills produced before the court, which one will be executed? Experts weigh in

It’s the battle of two wills between Bharat Forge Chairman Baba Kalyani and his younger brother Gaurishankar Kalyani over their late mother Sulochana’s will.

In a new twist in the ongoing legal dispute between Baba, Gaurishankar, and the children of their sister Sugandha Hiremath involving the Kalyani family’s assets, the Pune court has stepped in to hear the parties.

Baba has approached the Pune civil court, seeking to enforce a will of Sulochana dated January 27, 2012, and his brother Gaurishankar has disputed it with a different will dated December 17, 2022, which suggests a different way to distribute their mother’s estate.

 

The Indian Succession Act, 1925 (the Act) provides that a later will revokes an earlier will. A will is to be executed by the executors named in the will, after the death of the person making the will (called the testator).

“However, interpreting this provision, the Supreme Court of India seems to have taken contrary views in two separate judgments,” said Shaishavi Kadakia, Partner, Cyril Amarchand Mangaldas.

In 2012, the Supreme Court opined that the execution of a second valid will automatically makes a previous will redundant because the second will represents the last wish of the testator (a person who has made a will or given a legacy), and it is not necessary for the later will to carry a specific provision cancelling the earlier will (refer Mahesh Kumar (Dead) by L.Rs. v. Vinod Kumar and Ors.).

Conversely, in 2018, the Supreme Court held that reference of revocation of the earlier will is necessary in the later will for the later will to revoke the earlier one (refer H.V. Nirmala & Anr. v. R. Sharmila & Anr.).

“A will is required to be probated before it is enforced. Probate (defined under Section 2(f) of the Act) is the certification of a will with the seal of approval by a court of competent jurisdiction and is a judgment in rem (binding all persons in the jurisdiction), as opposed to a judgment in personam (which binds only the parties to a litigation),” Nishant Datta, Advocate, Delhi High Court, said.

If a will is made in a place which falls within the original jurisdiction of the High Courts of Bombay, Calcutta, or Madras, or if it deals with immovable property situated in such a place, then the executor must make an application to seek probate of such will from the jurisdictional court – for instance, in Mumbai, this would be the Bombay High Court. “Probate is granted by the court to certify the genuineness of the will. Once a probate is granted, the sanctity of the will is proven,” Kadakia said.

Gaurishankar had told the court that Baba’s attempt to probate the 2012 will was achieved through “coercion and undue influence”. He cited the 2022 affidavit, claiming that Sulochana had revoked all her previous wills. Gaurishankar further accused Baba of trying to ‘usurp’ the properties intended for him.

A will may be challenged on various grounds, such as that the testator did not possess mental capacity; in legal parlance, this is referred to as lack of ‘testamentary capacity’. Such challenges are particularly likely if the testator was old or mentally disabled. A will may also be challenged on the ground that the testator did not exercise ‘free will’ when preparing the will – i.e. there was undue influence or coercion on him or her. Challenges may also be made on the grounds that the will was forged or prepared by fraud. A will may also be challenged on the ground that it has been revoked or replaced by another later will.

A dispute over the will of hotelier late Prithvi Raj Singh Oberoi of the Oberoi Hotel Group also reached the Delhi High Court on Friday when the court restrained the transfer of shares in EIH Ltd and EIH's holding companies, Oberoi Hotels Private Limited and Oberoi Properties Private.

EIH Limited manages the Oberoi and Trident hotel chains.

The court ruled in favour of Oberoi's daughter, Anastasia Oberoi, who had moved the court claiming rights in shares of the companies as per the will of the late Oberoi. Anastasia and her mother claimed her brother, sister, and cousin (defendants) were obstructing the execution of the will.

Prithvi Raj Singh Oberoi passed away on November 14, 2023.

The parties have each produced a will to support their case. While Anastasia and her mother have based their claims on the October 25, 2021 will, the defendants have pinned their hopes on the will dated March 20, 1992.

“If there is a challenge to a will, then the court will hear the parties and examine evidence, and accordingly declare whether the will is valid or is void and liable to be set aside. For this, the court will examine all the surrounding circumstances which led to the preparation of the will, especially any circumstances which appear suspicious. The decision of the court may be appealed by the party against whom the order has been passed, till the Supreme Court, which is the final authority,” Kadakia said.

Contesting a will
 

 A will is challenged directly by filing a case against it in a High Court or by way of a probate petition filed by beneficiary 
 

The Court examines the will to ensure it checks all legal requirements, including having two attesting witnesses
 

The Indian Succession Act, 1925, provides that a latter will revokes an earlier will
 

 A Will is to be executed by the executors named in it after the death of the person making the will (called the testator)
 

 In 2012, the Supreme Court said the execution of a second will automatically makes the previous one redundant 
 

 This is because the second will represents the last wish of the testator (person who has made a will)