A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
Illustrations:
(i) A, falsely and knowingly represents to the testator, that the testator's only child is dead, or that he has done some undutiful act and thereby induces the. testator to make a will in his, A's favour; such will has been obtained by fraud, and is
(ii) A, by fraud and deception, prevails upon the testator to bequeath a legacy to him. The bequest is void.
(iii) A, being a prisoner by lawful authority, makes his will. The will is not invalid by reason of the imprisonment.
(iv) A threatens to shoot B, or to burn his house or to cause him to be arrested on a criminal charge, unless he makes a bequest in favour of C. B, in consequence, makes a bequest in favour of C. The bequest is void, the making of it having been caused by coercion.
(v) A, being of sufficient intellect, if undistrubed by the influence of others, to make a will yet being so much under the control of B that he is not a free agent, makes a will, dictated by B. It appears that he would not have executed the will but for fear of B. The will is invalid.
(vi) A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will of a certain purport and does so merely to purchase peace and in submission to B. The will is invalid.
(vii) A being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition makes his will in the manner recommended by B. The will is not redered invalid by the intercession and persuasion of B.
(viii) A, with a view to obaining a legacy from B, pays him attention and flatters him and thereby produces in him a capricious partiality to A. B, in consequence of such attention and flattery, makes his will, by which he leaves a legacy to A. The bequest is not rendered invalid by the attention and flattery of A.
Legal Commentary & Landmark Judgments: Section 61
Section 61 renders completely void any will or any part of a will whose making was induced or procured by fraud, coercion, or such importunity as takes away the free agency of the testator.
The section identifies three specific vitiating grounds: (1) fraud, where the testator is deceived regarding material facts or the nature and contents of the document; (2) coercion, where physical force, confinement, or violent threats compel the execution; and (3) importunity, where unrelenting pressure, emotional browbeating, or wearisome solicitation overpowers the testator's enfeebled will so that they execute the document merely for the sake of peace.
The illustrations to Section 61 clarify the critical distinction between legitimate persuasion and unlawful coercion: mere affection, dutiful service, or honest intercession does not invalidate a will; but where a testator is in a helpless or dominated condition and is subjected to incessant badgering that deprives them of independent volition, the resulting disposition is void. Furthermore, the section allows for severability: if fraud or coercion affects only a specific clause or bequest, that clause alone is void, leaving uninfected dispositions intact.
Section 61 requires rigorous pleadings and evidence. In probate litigation, caveators often raise a generic, omnibus plea alleging 'fraud, undue influence, and coercion'. The Supreme Court has repeatedly held that such generic pleas are worthless; the caveator must prove the specific acts of coercion or fraudulent misrepresentation that completely extinguished the testator's free agency. Conversely, propounders must demonstrate that the testator had independent legal advice and acted freely.