February 08, 2010

A person who writes a will cannot provide that if there was a dispute among the successors, it should be resolved through arbitration. “It would be merely an expression of a wish by the testator that the dispute should be settled by arbitration and cannot be considered as an arbitration agreement among the legatees,” the SC stated in the case, Vijay Kumar Sharma vs Raghunandan Sharma. In this case, two sons of the testator sued each other over the will, one of them alleging it was a fake.

The executors filed an application under the Arbitration and Conciliation Act stating that in view of the arbitration clause in the will, it should be resolved by the arbitrator named in the will. The trial court dismissed the suits. On appeal, the Rajasthan high court appointed an arbitrator. This was appealed against in the SC. It set aside the high court order observing that “a unilateral declaration by a father that any future disputes among the sons should be settled by an arbitrator named by him, by no stretch of imagination, be considered as an arbitration agreement among his children.”