‘Mental agony not synonymous with mental unsoundness’

Kolkata: Observing that mental agony is not synonymous with mental unsoundness, Calcutta High Court held a will made by a cancer patient, who had to be administered morphine for pain, was valid.

The bench of Justice Sabyasachi Bhattacharya and Justice Uday Kumar was moved by a section of a family contesting the validity of the will made by their mother Arati Ghosh (testatrix) and the lower court decree of granting the letter of administration (LoA) of the property to the legal heirs of one of the sons.

The testatrix had two sons and two daughters. One of the sons Jayanta Ghosh was appointed as the propounder of the testamentary property but his unfortunate death in 2013, left the will unprobated. Since his wife and daughter were legal heir and successor of his estate, the daughter filed an application under Section 278 of Indian Succession Act,1925 for grant of LoA for the property. However, the other son of the testatrix, Rajkumar Ghosh and his sisters (appellants) contested the proceeding praying for dismissal of the application for granting LoA, its cancellation and that the will be declared null and void. They cited that their mother had no testamentary capacity as she was of unsound mind at the time of will execution, Jayanta Ghosh procured the said will by undue influence, and their mother’s signature on the will was forged. The appellants counsel submitted that testatrix was not capable of executing the will as she was being administered morphine injection for cancer pain. Both morphine and cancer affected her mental soundness. The court observed, morphine was advised only for 15 days till February 14, 2007, while will was executed a week after the purported last dose of morphine. Hence, the court said clinical application of morphine to patients may cause drowsiness but cannot make a person unable to take rational decisions. “Feeling of drowsiness and lack of mental soundness is not the same… Drowsiness can slow down physical activity of a person, not the mental alertness…” court said.

Further, court opined diseases may cause mental agony but it is not synonymous with mental unsoundness. “Only mental illness affects mental soundness of a person,” the court observed. The court also did not find substance in the other allegations and upheld the lower court order.