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Here's How You Could Challenge A Will

Here's How You Could Challenge A Will

Here's How You Could Challenge A Will

The Last Will and Testament of a person is a legal document which provides details such as who will inherit the property, how and when the property will be divided among the beneficiaries, and who will serve as the ‘executor’ for settling the final affairs. Although it is not mandatory to register a will. However, a will which is registered under the Indian Registration Act makes for a strong legal evidence. But this does not mean it cannot be challenged for its authenticity.

Furthermore, it is important to obtain a probate of a will for an immovable property. This is done after the death of the testator or will-maker. A probate is a copy of will certified by the court. The court will seek objections from the other members of the family. If there are no objections, the court grants the probate and the will comes into effect.

A will would be invalidated in its entirety or just in part, if you challenge it on the reasons mentioned below.

MakaaniQ tells you about the various grounds basis which one can contest a will:

Lack of due execution

A person can challenge a will on the basis that it lacks some components as required under the law. A will must be in writing and duly signed by the testator. This should be done in the presence of two witnesses. Also, a will has to be dated. According to law, a new will with a later date would make the previous one null and void.

Lack of testamentary intention

A will can be challenged if it can be proved, although difficult, that the testator had not intended to make a will.

Lack of testamentary capacity

As per the law, only adults 18 years or above can create a will as they possess testamentary capacity. When a will is challenged basis a person’s lack of testamentary capacity, it often means that the testator was not in a sound state of mind or had a disorder - senility, dementia or insanity, was under the influence of a substance or lacked the mental capacity to make a will. A person possessing testamentary capacity will understand the nature and value of his or her assets and the legal effect of signing a will.

Lack of knowledge or approval

The knowledge and approval of the testator is naturally presumed when it is known that the testator had the necessary testamentary capacity. However, a will could be contested if it is proved that it was created under suspicious circumstances where the testator was not aware of the contents of the will.

 

Fraud, forgery or undue influence

 

A will could be challenged if it is established that it was procured by fraud, forgery, or undue influence by a third party that overpowered the free will of the testator to bargain because of the manipulator. The person contesting the will has to prove that the testator could have been tricked into signing the document if it was made as a result of any fraudulent act.

Revocation: Claims by family

A close relative of the testator could challenge the will on the grounds that they were not provided for adequately in the will. As per law, the head of a family is responsible for the proper maintenance of certain close family members who are specified in the Hindu Succession Act. They can claim in the Family Court or the High Court asking for provision to be made for them out of the estate.

It is advisable to challenge the will in the court as early as possible in order to prevent its execution. If the person challenging the will is successful, then the will would be termed invalid and the court would distribute the property as if no will ever existed. This distribution follows intestacy laws and is guided by familial relationships.

Last Updated: Fri Aug 03 2018

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