Suspicious Will cannot be probated.

M. Thanikachalam, J.

The plaintiff seeks probate of the Will dated 11.9.1990 said to have been executed by the deceased Dr. F.D. Wilson, who died on 15.8.1992.

2. Plaintiff's case in brief:

(a) Dr. F.D. Wilson married the second defendant on 23.4.1947. However, their marriage life was not happy resulting in judicial separation as per the order dated 19.4.1950 in O.S.No.11 of 1949, which was confirmed in appeal also. The first defendant is the daughter of Dr. F.D. Wilson, through the second defendant. Because of the judicial separation, which was confirmed, resulting in divorce, the defendants are not the legal heirs of the deceased Dr. F.D. Wilson. However, they have filed caveats and therefore, they have been shown as defendants.

(b) Dr. F.D. Wilson, while he was in a disposing state of mind, duly executed a Will at Madras on 11.9.1990, in the presence of two witnesses by name K. Chandrasekaran and M.R. Mani, which has been registered on 13.9.1990 at the office of the Sub-Registrar, Alandur as Document No.70 of 1990. Under the Will, the plaintiff, who is the nephew of the deceased is named as the sole executor and no other person has been appointed as co-executor, either Ex Pressly or according to the tenor of the Will. Hence it is prayed, that the plaintiff may be allowed to prove the last testament of the Will of Dr. F.D. Wilson for grant of probate.

3. First defendant's case in brief.

(a) At the time of the execution of the Will dated 11.9.1990, this defendant's father was aged about 75 years. For the past more than 5 years prior to his death, he was suffering from acute Parkinsons disease coupled with Alzheimers disease, both are progressive, and degenerative - diseases. The result of the disease would be that one would forget, what he said even two minutes prior and he cannot describe anything cogently because of unsound memory. In the month of June 1989, the father of the plaintiff visited her at Malavadi, Thiruvannamalai Taluk, where she was working and at that time, the disease had advanced much and his physical condition was also so weak requiring assistance even to stand up and had to be physically fed and was very slow in comprehension. Therefore, it is reasonable to assume that between June 1989 and September 1990, when the alleged last Will and Testament was said to have been executed, his physical condition must have been really bad and definitely worse than before and this being the position, it is incorrect to state that he had executed the Will while he was in a sound disposing state of mind.

(b) The Will is a fabricated one and has been made under highly suspicious circumstances. The deceased must have been under grave undue influence and he would not have executed the Will voluntarily, which could be seen from the interpolations available in the Will, not attested by anybody including the attester. The intrinsic evidence available would suggest that the testator was being unduly influenced by the beneficiaries or the Will should have been forced on the, testator or should have been fabricated by them in view of the fact, it was impossible for the testator to have remembered all his nephews, as narrated in the Will.

(c) This defendant was not even informed by anyone about the death of her father. The alleged sale by her father in respect of Gandhi Nagar Property was also not in formed including the shifting of the residence from Gandhi Nagar to St. Thomas Mount. When this defendant met her father, he was in bed, unable to move because of the suffering from Parkinson’s disease and also Alzheimers disease, both of which certainly affected the brain and in this view, he would not have been in a sound disposing state of mind, when the alleged Will was said to have been executed.

(d) This defendant on seeing the obituary column in the newspaper alone, came to know about the death of her father on 15.8.1992. The Will was read over on 19.8.1992. On seeing the Will, this defendant is of the view that the same is