Testator

Introduction
The term “testator” is deceptively simple: the person who makes a will. In practice, however, the legal identity, capacity and conduct of the testator determine whether a testamentary disposition will survive judicial scrutiny. For practitioners in India—whether advising clients on estate planning, seeking probate, or contesting a will—the law relating to the testator is the pivot on which questions of validity, revocation, undue influence and proof turn. This article isolates the statutory essentials, the everyday forensic issues that arise in court, and practical strategies counsel must adopt when the disputed will rests on the actions and state of mind of the testator.

Core Legal Framework
Primary statute
– Indian Succession Act, 1925 — Part III (Wills). The Act contains the core statutory rules governing who may make a will, the formalities required for a valid will, and the incidents of revocation, codicils and privileged wills.

Essential sections to note (text paraphrased for focus)
– Section 59 — Capacity of testator: “Every person of sound mind and not being a minor may dispose of his property by will.” (This establishes the twin prerequisites: majority and soundness of mind.)
– Section 63 — Execution and attestation: A will must be in writing, signed by the testator (or by someone in his presence and at his direction) and attested by two or more witnesses present at the same time; each witness must see the testator sign or his acknowledgment of the signature. (These are the basic execution formalities.)
– Section 64 — Where testator unable to sign: A will may be signed by another person in the testator’s presence and by his direction; such signature must be attested in the usual way.
– Provisions on privileged wills, revocation and codicils are also contained in the Act and affect whether a testator’s later acts alter an earlier will.

Ancillary law
– Indian Majority Act, 1875 — defines the age of majority relevant to the “not being a minor” requirement.
– Indian Evidence Act, 1872 — rules on admissibility and proof of documents, attesting witness testimony, handwriting experts and presumptions relating to documents are frequently invoked in will disputes.
– Procedure for probate and letters of administration is also governed by the Indian Succession Act and the relevant Civil Procedure Code practice rules of the High Court where probate/letters are sought.

Practical Application and Nuances
Testamentary capacity (the “sound mind” requirement)
– Legal test: A testator must understand (1) the nature of making a will and the effect of his act; (2) the extent of the property of which he is disposing; and (3) the claims to which he ought to give effect (i.e., the natural objects of his bounty). The classic statement of these elements (often cited from English authority) remains the template applied by Indian courts.
– Day-to-day evidence: capacity is established or attacked using contemporaneous medical records, treating physician affidavits, statements by attesting witnesses, video/audio recordings of execution, correspondence (letters/emails) showing coherent thought, appointment of proxies or power of attorney, and the testator’s routine activities shortly before execution.
– Practical examples:
– Will by an elderly testator with dementia: produce medical records, neuropsychology reports and treating doctor evidence for capacity; conversely, a challenger will seek GP records, hospital notes, and caretakers’ testimony about lapses, confusion or hallucinations.
– Short-form handwritten will: when capacity is challenged, handwriting analysis plus contemporaneous notes explaining the disposition can be crucial.

Execution and attestation: shape of a valid will
– Two witnesses: A common battleground. Courts insist that attestation must satisfy statutory presence requirements—witnesses must see the testator sign (or his acknowledgment) and then sign themselves in the testator’s presence. If an attesting witness denies witnessing, the will’s validity is endangered.
– Signature by proxy: Where the testator cannot sign, the person who signs on his behalf must do so in his presence and at his direction; attestation remains essential.
– Practical examples:
– Attesting witnesses dead or unavailable: secondary evidence, contemporaneous affidavits, or other corroborative evidence (bank signatures, letters showing the will was read and approved) assist proving due execution.
– Self-proving affidavit / video: Although not mandated, contemporaneous self-proof (notarised affidavit or videoed execution) drastically reduces contested factual disputes.

Undue influence, fraud, and lack of knowledge and approval
– Undue influence: Courts examine whether the testator acted freely. Typical indicia include isolation of the testator from family, dominance of the beneficiary in daily affairs, abrupt change from longstanding testamentary pattern, and active procurement (e.g., beneficiary arranging witnesses, meeting alone with doctor to certify capacity).
– Lack of knowledge & approval: Even a formally executed will may be set aside if the testator did not know or approve of its contents. This is common when the testator is illiterate and relies wholly on someone else to read and explain the will.
– Practical examples:
– Beneficiary as attesting witness or as drafter: Strong suspicion; courts scrutinise whether an independent adviser or solicitor facilitated execution.
– Multiple wills in short span: Courts assess whether newer will was the product of pressure or of a genuine change in testator’s view.

Revocation, codicils and subsequent acts
– Testator’s later acts (execution of new will, revocation clauses, destruction) can revoke or alter prior wills. Proof of revocation requires clear evidence—burning, tearing or written revocation by the testator are decisive; mere oral statements in the presence of family may be inadequate.
– Codicils: Treated as supplements—subject to the same execution formalities.

Proof in probate/contest proceedings — everyday forensic work
– For petitioner seeking probate: file certified copy of the will, prove due execution by calling attesting witnesses, tender medical and documentary evidence of capacity, address suspicious gaps proactively by producing contemporaneous drafts, correspondence, appointment of executor’s remarks.
– For objector: attack capacity, execution formality, undue influence, fraud and suspicious circumstances. Cross-examine attesting witnesses harshly on whether they saw the signature, how the will was explained, and the presence of the drafter/beneficiary.
– Use of experts: handwriting experts, geriatric psychiatrists, neurologists, and forensic document examiners are regularly decisive when medical and documentary evidence conflict.

Proof thresholds and evidentiary approach
– Civil standard (preponderance of probabilities) governs validity in probate and civil suits — not the criminal standard. However, in practice, courts require clear and cogent evidence because probate settles property rights that might affect many people.
– Suspicious circumstances doctrine: when a will is executed in circumstances that excite suspicion, the burden shifts to the proponent to prove absence of undue influence or fraud. Practically, the proponent must produce strong corroborative evidence (medical records, independent witnesses, contemporaneous conduct).

Landmark Judgments
– Banks v. Goodfellow (1870) LR 5 QB 549 (English authority): Although not an Indian decision, this is the seminal statement of testamentary capacity relied upon repeatedly by Indian courts. It articulates the core test: the testator must understand the nature of making a will, the extent of his property, and the claims to which he ought to give effect, and must not be acting under any delusion affecting the disposition.
– Application in Indian courts: Indian jurisprudence consistently imports the Banks v. Goodfellow tests when determining “soundness of mind.” Practitioners should cite Banks alongside jurisdictional authorities of the relevant High Court or Supreme Court decisions that apply it to factual scenarios similar to the client’s case.
(Note: Always supplement the Banks principle with binding or persuasive Indian precedents from the relevant High Court or the Supreme Court—jurisdictional precedent on capacity and undue influence will dictate outcome.)

Strategic Considerations for Practitioners
For counsel drafting wills and advising testators
– Pre-execution checklist:
– Establish capacity evidentially: obtain a physician’s certificate when the testator is elderly or infirm and make it part of the will file.
– Use clear, unambiguous language; include residuary clause and explanatory recitals to explain reasons for departures from expected dispositions.
– Avoid beneficiaries as attesting witnesses. Use independent, credible witnesses; preferably professional witnesses who can later testify to the execution.
– Prepare a short execution memo or video-record the execution where lawful and acceptable to the client—this is extremely valuable in later contests.
– Keep drafts and correspondence; contemporaneous documents rebut after-the-fact claims of lack of knowledge and approval.
– Consider a self-proved will (not mandatory in India but a notarised affidavit or lawyer’s attestation makes later challenges harder).

For counsel prosecuting a probate petition
– Proactive evidence: bring attesting witnesses, treating physician affidavit, contemporaneous correspondence and any contemporaneous statement of the testator explaining the will.
– Deal with suspicious facts proactively—if beneficiary arranged everything, explain the safeguards taken (independent witnesses, legal advice, medical check).

For counsel opposing or challenging a will
– Focus early on: capacity, undue influence, and formal execution defects.
– Attack attesting witnesses: impeach their testimony on presence and understanding.
– Deploy medical experts to demonstrate cognitive deficits contemporaneous with execution; juxtapose with diary entries, bills, and bank transactions showing inability to manage affairs.
– If later will exists that is more favourable to objector, trace chain of events and show beneficiary’s role in procurement.

Common pitfalls to avoid
– For proponents: assuming that a signed document is conclusive—formal defects, absence of independent witnesses and suspicious procurement are frequent grounds for upset.
– For objectors: overreliance on oral family testimony without medical or documentary corroboration; courts expect concrete evidence for serious allegations like undue influence.
– For all: neglecting jurisdictional precedents. High Courts differ in emphasis on certain factors—local precedent matters.

Conclusion
The identity and state of the testator—his capacity, his acts at execution, his later conduct—are determinative in will litigation and estate administration. Practically, counsel must build the evidentiary narrative around three pillars: capacity (soundness of mind), execution (statutory formalities), and freedom from undue influence/fraud. Drafting practices that anticipate future challenges (independent witnesses, medical certificates, contemporaneous explanation, self-proof mechanisms) make for incontestable wills. When contesting, a focused, evidence-led attack on the testator’s capacity and the circumstances of execution yields the best prospects. Finally, while English authorities such as Banks v. Goodfellow provide the enduring doctrinal test for capacity, always anchor submissions to binding or persuasive Indian precedent from the relevant High Court or the Supreme Court for best forensic effect.