Interpretation Of Wills In India: A Testament Of Intentional Fallacy

Issues in the interpretation of a will arise when the judges try to interpret a will from a ‘lawman’s perspective’ rather than from a ‘layman’s perspective^[2].’ There has been a growing sense of dissatisfaction when it comes to interpreting wills; the courts have adopted an ‘objective approach’ which is often known to be ‘far-away’ from the testator’s intent There exists an assumption that human beings are able to understand the subjective mind of another, in the process of interpreting the ‘reasonable person’s’ words the courts often overstep against the true wishes of the testator^[3]. The courts must keep the essence of the words of the will at the centre of their association however, circumstances leading up to the drafting of the will must also be looked at as is to realise the true intention of the testator. Through this essay we aim to explain that, by taking into consideration a subjective interpretation of facts and applying the various rules of interpretation rather than assimilation of words, the courts can look at the ambiguities of the will in a conscious manner; with the application of values and principles subjective to the testator’s position in the family and society.

Animus Testandi: The collision between the system and the intent:

"The clauses in a Will are like Sailors on a ship sailing in the same direction. Each clause has an individual value like each Sailor has an individual role to play".^[4]

According to Section 2(h) of the Indian Succession Act 1925, a will is a legal declaration of the intention of a person for devolution of their property and assets to take effect after their death^[5]. It provides the testator with the freedom of disposition over their personal assets to be distributed amongst the truly deserving; it is used to express the subjective intention of the testator and as an evince to their love and devotion to the benefactor. Unlike the rules of natural succession, here, the devolution of property is through choice and not blood; its veracity is not determined on the grounds of fairness and equity. The protection provided to the testator’s autonomy through the statue is nuclear to the extent that it only provides for a narrow interpretation of language and leaves conformity of words to the discretion of the court.

The statute in India pleads for clarity and non-technical wording in the will, explicit enough to convey the intentions of the testator in full. However, wills are not legal documents penned down by experts, they are often written in vernacular language and its interpretation can be obscure. The words “inquiry into every material facts” does not elaborate on the methodology of interpretation of the court. There are multitudes of approaches the courts can adopt to interpret a will. Through this essay we will discuss the same. The instances which frustrates the individuals quite often is that the prejudice of the court, along with clouds of ‘suspicion’ caused by unfair disposition and unjust exclusion adds a greater barrier to the true interpretation of testamentary intent. In the case of Navneet Lal v. Gokul, the judges were asked to ‘become the testator’ so that the actual intention of the testator is determined. However, it was also argued that these elements should only be used as a guide for determining the testator's purpose. The testator's possible intentions cannot be assumed by the court. Only the testator's express or implicit purpose, as stated in the will, can be interpreted by the court. It cannot draught a new will or make one for the testator^[6]. This becomes difficult at times when the testator comes from a very different background as against the judge who is construing the will, in cases where the judiciary would try to bring in an objective interpretation of a subjective state of mind^[7].

The procedural limitations in the conduct of a will accord from the stage of probate, family members and other close beneficiaries moot to provide sufficient ground to declare a will suspicious. When wills are written in vernacular languages or in the fear of death, the testamentary freedom of the testator is threatened by the fear of strict compliance; under this system no document will be admitted to the court of probate if it does not comply with all formalities of the law^[8]. The courts, in cases of ‘suspicion’ take a look at the various clouds of suspicion surrounding the will. In the case of Kavita Kanwar v Pamela Mehta, the court found out the genuineness of a will in order to ascertain the last final wish of the testator. From a reading of this judgment, it is clear that, simply meeting the requirements for proof of a Will in terms of Section 63 of Indian Succession Act, 1955 and Section 68 of the Evidence Act, 1872 is not sufficient to satisfactorily grant relief at Probate; it is the suspicious circumstances shrouding the will that must be eliminated^[9]. The fact that a will is not ambiguous does not warrant construing it rather than interpreting it in light of the evidence available. We understand that proof of a valid will does not prove the true intent, even when no animus testandi is established, the courts often force itself to identify the subjective interest of the testator^[10]. They interpret the will in a standardised format, by following the reasonable practices of the society and the values of legal policy; and in this process fail to harmoniously adopt the effect of the true intention of the testator^[11].

Understanding the solitary approach to interpretation of wills in India:

There are various approaches to the interpretation of a will, considering the types of ambiguities hat are patent or latent. It appears that courts have seen patent ambiguities as essentially a concern with will construction. In this instance, since there is no need for extrinsic evidence to demonstrate the ambiguity's existence, there is also no need for extrinsic evidence to demonstrate how to resolve it^[12].

The first rule that the judiciary applies while interpreting a will is the Plain meaning rule. The wills are interpreted by applying the ‘plain meaning rule’ which means that only the plain meanings of the words in the will would be used to interpret the document. When the interpretation of will fails by applying the plain meaning rule, the court applies the armchair rule. The "plain meaning rule" states that unless there are compelling reasons to adopt a different interpretation, the court should use the terms' customary meaning. Both of these guidelines are being superseded by free interpretation depending on the facts of the case in modern law. The case of N.Krishnammal v R. Ekambaram & ors provided for the fact that while interpreting a will written in non-legal language, it must be construed in the legal sense of the term^[13]. This makes it clear that the judges cannot go beyond the written words of the document, whereby it takes into consideration the surrounding circumstances only when such interpretation fails.

The Section 75 of the Indian Succession Act, 1925 provides for the interpretation of a will by applying the ‘armchair doctrine’ which talks about when the interpretation through the plain meaning rule fails, the courts bring out extrinsic evidence surrounding the testator and puts itself on the chair of the testator while he was making the will. "You may place yourself, to speak, in (the testator's) armchair, and consider the circumstances, by which he was surrounded when he made his will, to assist you in arriving at his intention^[14]."

In essence, the courts apply the four-corner approach while interpreting the wills by particularly staying within the corners of the document, which means that the document is interpreted solely by its written content.

Comparative Analysis: The U.K. and India-

As we have already come up to the fact that there isn’t any uniform structure of interpretation of wills to identify a testator’s intention, we tend to shift to ways that might hamper the intentional character of the will. Looking at the history, here is an attempt to compare and analyse the methods of interpretation between India, and its colonizer the United Kingdom. The ‘armchair’ rule is the one that is being used in certainly all the jurisdictions of the world to ascertain the intention of a testator.

In India, Section 75 of the Indian Succession Act, 1925, gives the ‘armchair’ rule according to which the court gets on to the chair, the position of the testator while interpreting the wills^[15]. the Chapter IV of the Indian Succession Act, 1925, deals with the construction of wills, wherein a few of the principles for the interpretation of wills are also statutorily recognized.

• Section 84 states that if in case a clause of the will can be inferred to have two separate meanings, one of which has some effect while the other does not, the former shall be preferred.
• Section 85 states that if any part of the will has the possibility to be reasonably construed then it cannot be rejected as deficient of meaning.
• Section 86 states that if a certain word appears at different parts of the same will, the word shall be interpreted to have the same meaning wherever it appears, unless a different intention appears.
• Section 87 makes it clear that it cannot be said that the judiciary can set aside the intention of the will maker simply because his intention cannot take effect to the full extent, and that effect is to be given as nearly as possible to the intention.
• Section 88 states that the latter clause of a will would prevail in case there exist two contradictory clauses.

The judiciary while interpreting the will, takes into account the extrinsic evidence only when there is some ambiguity.

The first guideline for interpreting a will is that it must be read in its entirety to determine the testator's intentions. Second, it is important to be careful while assuming intestacy. The interpretation that supports testacy should be chosen if two interpretations are viable. Thirdly, the language used in a will should be understood in light of all the provisions of the will in order to clear up any ambiguity. Fourthly, the court should even provide an omission if the situation calls for it in order to carry out the testator's desire. Fifth, if a term or phrase's common or technical interpretation conflicts with the Will's overall objective, that intention may be disregarded.

The U.K. has the Administrative Justice Act, 1982 which talks about interpretation of wills, of which Section 21 presents a substantial departure from the way a contract is interpreted^[16]. It provides for a procedure of construing the will which is far off from how a contract is construed. S.21 allows the court, in cases of meaninglessness or ambiguity to undertake the otherwise dissident act of using extrinsic evidence of the testator’s subjective intention as an aid to construction. To reaffirm that the meaning the testator gave those terms when writing their will, as opposed to a conclusion resulting from the application of a rule of construction to those words, should always be favoured. There have been certain stark differences between the two nations with respect to the laws relating to the wills but their interpretation while seeking the intention of the testator is more or less the same^[17]. Looking at the contrasts, there have been certain suggestions to differentiate the interpretation of wills from the interpretation of contracts in the U.K. But in India, the courts rely on the same understanding of interpretation of wills and contracts. The courts have contended that it is “Not our duty to delve deep into the intricacies of human mind” while interpreting contracts. Similar is the approach of the courts while applying the ‘armchair rule’ as far as the wills can be interpreted in order to ascertain the intention of the testator by deriving the plain meaning of the words.

In India, the court has held that “Where there is a conflict between the earlier clause and the later clauses, and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa.^[18]” This is in contrast with the provisions as applied in the U.K where in cases of conflict, it is the latter clause that is given preference since the testator might change his mind by the end of the will and it is the latter that is the most recent effect of the will, thereby such an application.

Rationalising Intention: Determining Issues in the Ecosystem

It is argued that a court must, in every instance, understand the purpose for which it seeks to determine a testator's intention. This is so that it can undertake the correct enquiry. Since there is no such uniform or a clear doctrine that can be applied for the interpretation of wills, courts experience difficulty making decisions on testamentary purpose consistently and reliably. Without a clear testamentary intent theory, often divergent decisions are generated in cases without any noticeable variation that can be seen through their underlying intent, being reflected through the reading of the wills. This irrationality has a price. For instance, it promotes lengthy litigation, which has clear financial implications as well as psychological and emotional consequences for the decedent's friends and family who must endure this lawsuit over time. In jurisdictions which focus on the freedom of testation, wherein they prefer individual testator’s plans on the devolution of his estate over the general concept of intestate succession, the rule of substantial compliance comes into picture. It is considered that the effect of the testator’s actual intent must be preferred in all cases and the rules of intestate succession must not become a substitute for them. Under conventional law, the courts do not have a power to edit, reconcile or replace the language of the will because it would hamper the testator’s true intent which he might have wanted through the use of such language. By limiting the court's ability to decide the decedent's substantive testamentary intent in this way, the conventional law fosters predictable and consistent outcomes.

Taking in ideas from the interpretation of wills in the U.K. jurisdiction, it makes it convenient that the will being a very different document than what a contract is, it shall be interpreted in a manner that is distinctive that the interpretation of contracts. This is because the effect and the intricacies of the will come into existence only after the death of the testator and brings with it various complexities which question the certain already used interpretation techniques in India^[19]. Applying the same here would enable the judiciary to ascertain the true intent of the testator while focusing on major areas of the will in order to avoid the devolution of property through intestate succession.

The principle of prioritising a testator's intent over everything else and the policy of relying on the language of the will to ascertain that intent allow courts to confidently discern particular testamentary intent. This general trend of change in the law of wills needs a good grasp of the issues that courts must determine when exercising their discretion since it increases judicial discretion in determining questions of testamentary intent. The fundamental difficulties can be concealed and muddled with minimal effect when testamentary intent is determined and understood using formalistic techniques.

Views are personal.