Sham Will

A Will can look perfect and still be worth nothing.

Suppose a document is drawn up with all the due formalities. It is signed. It is attested. It reads like a Will in every respect.

Now suppose it can be proved that the testator never meant it to operate as a Will at all. He signed it for some other reason — a collateral object.

That document is a sham Will. It is a nullity.

The reason is simple. Intention is the primary characteristic of the validity of a Will. Form alone cannot supply it.

The workbook's test, in its own terms. If a document is deliberately executed with all due formalities purporting to be a Will, it will be a nullity if it is proved that the testator did not have any intention of any testamentary operations, but had some collateral object. The reason given is that intention is the primary characteristic of the validity of the Will. Such a Will is a sham one.

Three parts to the test, and all three have to be there.

1. The document is deliberately executed with all due formalities. A sham Will is not a badly drafted Will; it is a properly drafted one.
2. It purports to be a Will. On its face there is nothing wrong with it.
3. It is proved that there was no testamentary intention, only a collateral object. The burden is on proof, not on suspicion.

What follows. A nullity is not a defective Will that can be cured. The document does not operate at all. If there is no other valid Will, the estate falls to be dealt with as it would be on intestacy.

Where it sits among the types of Will. Section 15.2.2 lists the kinds of Will a testator may write. Six of them are ordinary variants of a valid Will — conditional or contingent, joint and mutual, duplicate, holograph, concurrent, and privileged and unprivileged. The sham Will is the odd one in the list: it is not a type of valid Will at all, but a description of a document that fails.

Its close cousin in the same list. A conditional or contingent Will is also unenforceable when its condition fails, and is deemed invalid if the condition imposed is itself invalid or against law. The difference is where the defect lies. In a conditional Will the intention was genuine and the condition did not come about. In a sham Will there was never any testamentary intention to begin with.

The workbook gives no figure for this concept. Section 15.2.2 item 6 states no time limit, no threshold and no rate, and there is no number attached to it anywhere in the chapter.

The workbook states the rule and gives no figures; the amounts below are illustrative.

Mr Kulkarni owns a flat in Nashik worth Rs 90,00,000 and financial assets of Rs 35,00,000. He is negotiating a bank loan and the bank wants comfort that his nephew, who is guaranteeing it, has an interest in the flat.

To produce that comfort, Mr Kulkarni signs a document, properly attested by two witnesses, that reads as a Will leaving the flat to the nephew. He tells the nephew plainly, in writing, that the paper exists only for the bank and is not meant to dispose of anything on his death. He never intends it to operate.

Mr Kulkarni dies. His daughter challenges the document.

So the Rs 90,00,000 flat does not pass to the nephew under that paper. If Mr Kulkarni left no other valid Will, the flat and the Rs 35,00,000 are dealt with as an intestate estate.

Change one fact. Suppose Mr Kulkarni had genuinely intended to leave the flat to his nephew, and had merely also shown the document to the bank. The intention is now testamentary, the collateral use is incidental, and the document is an ordinary valid Will. The nephew takes the flat.

Chapter 15 (Tools for Estate Planning), section 15.2.2, Types of Will, lists the sham Will as item 6 among the kinds of Will. Expect a matching or definition question: which type of Will is a nullity, or what makes a formally perfect document fail as a Will. The examinable phrase is that intention is the primary characteristic of validity, and the examinable trigger is a collateral object.

• A sham Will is not a badly made Will. The formalities are complete; that is the whole point. What is missing is intention.
• It is a nullity, not merely unenforceable in part. The document does not operate at all.
• Proof is required. Suspicion that a testator was not serious does not make a Will a sham; the absence of testamentary intention has to be proved.
• A collateral object is the giveaway. The document was executed to achieve something else.
• Do not confuse it with a conditional or contingent Will. There the intention was real and the condition failed. Here there was no testamentary intention in the first place.
• It is the only item in the list that is not a valid form of Will. The other items in section 15.2.2 describe Wills that work; this one describes one that does not.
• Revocation is a different idea. Section 62 of the Indian Succession Act lets a testator revoke or alter a valid Will at any time while competent. A sham Will never needed revoking, because it never operated.