Will

Posted On : December 2, 2024

Challenging the Validity of a Will in India

Written By : Vidhikarya

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The Indian Succession Act, 1925 is the law which deals with succession, both, intestate and testate, in India. Intestate succession is used when a person dies without a Will and the distribution of the estate is based on religious laws. Testamentary succession, however, applies where there is a Will in force. The Hindu Succession Act applies to Hindus, Muslims, Sikhs, Jain, Buddhists, and Christians but does not include Muslims because succession among them is governed by the Muslims’ personal law.

This article expands on understanding the Will; who may enter an objection to it; the reasons for which it can be objected to; and the legal system involved in the process.

What is a Will?

A Will is a legal statement made by a person: the testator, of how he or she would like their property to be divided after their death. It enables a testator to determine how his/her assets and properties accumulated for a lifetime will be disposed of after his/her death. The Will operates only after the death of the testator or the maker of the Will.

Key Terminologies

Testator: The person who creates the Will.
Executor: A person or an organization that is charged with the responsibility of putting into practice what has been suggested by the Will. An executor will be nominated in the will or be inferred but the executor must be an adult of sound mind.
Beneficiaries: The parties that stand to benefit from the Will as it has been presented and prepared by the testator.
Subject Matter: The property or assets that are or were sought to be divested through or under the Will.

Features of a Valid Will

A Will typically contains the following:

Details of the testator include the name of the testator, address, etc
Wishes of the testator concerning the division of his/her property
Description of the property and sharing
In particular, the use of names and details of the beneficiaries

Appointment of an executor

This must be followed by the testator’s signature and the signature of two witnesses

Who Can Challenge a Will?

The Indian Succession Act, 1925, fails to explain who has the capacity to contest a Will. The courts admit some persons with a special legal standing together with the beneficiaries named in the Will to challenge the Will. Common challenges include:

Heirs

Any relative of the deceased who could be a parent, sibling, spouse, child and or any other relative listed in this capacity may protest to a Will on the ground that they have been disinherited or not given their fair share.

Beneficiaries

The named beneficiaries of the Will may contest the document of the Will if it was prepared under fraud, coercion undue influence or a belief that the Will does not represent the testator’s last wish.

Minors

A minor who has an interest in the Will cannot petition against it in his or her personal capacity. Their legal guardian has to challenge the Will on their behalf.

Grounds for Challenging the Validity of a Will

Where certain facts exist, a Will can be contested in several ways and this depends on the facts surrounding the Will. These grounds include:

Claims of undue influence, fraud or coercion

A Will is considered void if and only if it has been executed with undue influence, coercion, or fraud.

Fraud: Refers to the planned keeping of the truth to change the testator’s intentions.
Coercion: Physical and/or emotional coercion against the testator so they are compelled to make a decision involuntarily.
Undue Influence: Misuse of a close relationship or authority to dominate the testator.

Another issue encountered when attempting to determine testamentary intention is the absence of such intention.

Consequently, a valid Will must be made to advertise the intention of the testator. However, where the language used by the testator in a Will is not clear or does not reflect the testator’s true intention, the Will can be contested.

Improper Execution

The Indian Succession Act mandates specific formalities for Will's execution:

It has to be in the testator’s handwriting.
The testament shall be signed by the testator; the signature shall be countersigned by at least two witnesses.
The witnesses to the Will have to make their signing willingly without any pressure being applied to them.
In case any of these conditions is not met, the Will can be contested.

Forgery

The Will may be declared invalid in a case where it is forged or fabricated. The one alleging forgery has to support the claim to the required evidence standard.

Revocation of the Will

A Will can be changed or completely revoked by the testator at any time during their lifetime. An earlier Will becomes completely invalid if a subsequent Will is made. However, the revocation must not be done under force, intimidation or fraud.

Lack of Testamentary Capacity

The testator must have the capacity to understand the nature and effect of making the Will while in the making of the Will. A Will can be challenged on the grounds of lack of testamentary capacity if the testator:

Was under 18 years of age.
Lacked sanity or had mental disorders such as dementia.
Consumed alcohol or used other substances prior to the incident.
Physically unable because of being paralyzed to grasp the consequences of their actions.

Suspicious Circumstances

The court scrutinizes Wills executed under suspicious circumstances, such as:

Some instincts are considered abnormal, for example, removing nearby family members without any cause.
Unreadable signatures or fingerprints.
Two witnesses give different accounts of the same event or occurrence.
Vague issues concerning time, place, and date of execution, do not agree with the principle of double jeopardy.

Lack of Knowledge or Approval

A valid Will can only be planned and executed by a testator who understands what he or she is planning to do. It is possible to challenge the Will if the testator does not understand or approve of what has been written.

Challenging a Registered Will

While making an application for registration under the Indian Registration Act, 1908, there is a certain presumption of the Will being valid; however, this does not make the Will disentitled from being challenged. A registered Will can be challenged on the same basis as an unregistered Will, including fraud, coercion or lack of capacity.

Steps to Challenge a Will

Contesting a Will has strict legal procedures that must be followed with a lot of precision to enable the issue to undergo legal recognition. Below is a general outline of the process:

Filing a Caveat:

If you want to challenge the validity of the Will, then one must lodge a caveat at the Probate Registry. By filing a caveat, the distribution of the estate is temporarily halted, which actually provides one with approximately six months to determine if they actually have grounds to contest a Will. In certain circumstances, the caveat period can be extended.

Responding to a Warning Notice:

According to the provisions of the law, the executors of the estate can counter the caveat by providing a notice to the Probate Registry. This warning notice makes the person who filled the caveat to do further proceedings if he wants to continue challenging.

Submitting an Appearance:

However, if you want to go on further with the contest, you may need to ‘prove’ your assertion by filing what is known as an ‘appearance’ in response to a warning. This step aggravates the issue since it drags the case to the court for them to decide on the issue. It is important to bear in mind that while moving at this stage may entail some latent legal costs.

Court Proceedings:

In the event that the case has not been solved out of court, the parties have to go to the court to provide proof. This means that you will have to gather medical records, expert opinions or compilations, and witness statements to prove the validity of the reasons listed above to set aside the Will.

Engaging Legal Expertise:

Given that Will contests can be legally complicated and expensive, the use of an expert lawyer in succession law is essential to increase the chances of success.

Conclusion

Contesting a Will is another legal procedure which goes to court and needs a lot of proof and documentation. Courts always analyze each case on its merit based on the reasons advanced and evidence produced before the court. Against this background, India stands to benefit from a higher degree of rigidity specifically regarding penalties for false challenges. Legal advice helps ensure that all rightful beneficiaries gain that which they deserve while on the other hand, all fake claims are addressed adequately.

When a distinction remains between what one or more members of a family wanted to be done in a Will and what has been done, or when a Will is felt to have been made in an unfair or improper manner, one should seek legal advice.

FAQs

Is a registered Will actionable in court?

Of course, in situations of fraud, coercion, undue influence, or procedural abnormalities.

Does having an unregistered Will mean that a registered Will takes priority over it?

In most cases yes, but if the unregistered Will is shown to be the last and was executed without vices.

What are the consequences of successful challenges to a Will?

It is divided in accordance with the laws of intestate succession or the last valid Will and testament.

Can a minor be an executor of a Will?

Well, no, the executor has to be at least eighteen years old, and of sound mind, and so forth.

Is it legally possible for a testator to disclaim his legal heirs?

Yes, but the reasons for their exclusion should be made clear and sound in the Will to reduce possible conflict.

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