CIVIL RESPONSIBILITY 391
Testamentary Capacity or Capacity to make a Valid Will.—A civil court
may invalidate a will if it is proved that the testator, at the time of making
his will, was not of a " sound and disposing mind " and had not sufficient
mental capacity to understand the nature and consequences of his act, and
if it is satisfied that he disposed of his property in a way which he would not
have done under normal conditions.
If a medical practitioner has to examine a person as to his fitness to
make a valid will, he should, before testifying, make the testator enumerate
the amount of his property, the names of his relatives and others to whom
he has left his legacies, and should make him repeat the main provisions of
the will, enquiring reasons for any disposal of property which seems unjust
or out of the common, or for any legal heirs being omitted. He should also
find out if he knows the nature of the will-and realizes its consequences and
if he is not influenced by any insane delusion in disposing of his property.
If a medical practitioner has reason to suspect that he is under the
influence of some person who prevents him from exercising his own discre-
tion in making his will, it is better that he should see him alone and
encourage him to speak out freely. It must be noted that a will is invalid,
if it is executed under the undue influence of any other person.
Persons can make valid wills during lucid intervals. Persons affected
by an insane delusion can make a valid will, if the delusion is not related
in any way to the disposal of the property or to the persons affected by the
Wills made in a fit of drunkenness are considered valid, unless the
individual was so drunk as not to know the nature of what he was doing
and unless they were repudiated in sober moments. Wills may be contested
but cannot be declared invalid on the mere ground of the eccentricity,
slovenliness, neglect of person and clothing, and offensive and disgusting
habits of the testator, for these do not constitute unsoundness of mind.
In the case of Katrak and another v. Khorshedbai and others before the High Court
of Bombay the will of a Parsi priest20 was contested on the following grounds: —
1. That the deceased was suffering from a delusion that his brother and sister had
been instrumental in causing his son's death with a view to inheriting his property. This
delusion so operated on his mind that he had lost his testamentary capacity.
2. That the deceased was not in a sound mind as he moved about in dirty clothes,
kept food in cupboards for days and then ate the same in that condition, took away
sandalwood offered at the agiary (fire temple) and sold the same for his benefit and
sold sacred water of the sea to non-Zoroastrians and so on.
Dealing with the alleged delusion, His Lordship said that the evidence led in the
case did not justify this conclusion. Even if there was this delusion, it did not prevent
the deceased from making a valid will, inasmuch as it had not influenced him in not
considering the claims of his relatives. The other allegations only showed that the
deceased was a miser and did not at all prove that he had lost his testamentary capacity
or was of unsound mind.
Having regard to the life led by the deceased and the fact that he had ceased to live
with his brother and sister for over thirty years, His Lordship found nothing unusual
in his leaving his whole fortune amassed by leading a very frugal life to the agiary to
which he devoted his whole life. The evidence of the alleged delusion and unsoundness
of mind was meagre, unsatisfactory and unreliable and did not justify His Lordship in
coming to the conclusion that he was incapable of making a testamentary disposition.
His habits of life might be eccentric, but the deceased was able to look after his affairs
and showed clear-headedness.
The will having been proved to have been properly executed by the deceased His
Lordship granted probate thereof to the plaintiffs, and dismissed the caveat making the
defendants pay their own costs.
Wills made by persons in extremis are regarded as suspicious and may
be set aside, for the mental condition in such cases is seldom normal
20. Times of India, Dec. 2, 1936.