V Ramakrishna Rao
Asked June 15, 2016

Want to Challenge Will

  • 1 Answer
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The grand father passed away recently in Vijayawada 1 month facing ill health for nearly 4 years and mysteriously my grand mother passed away just a month later who was fit and healthy with no health problem. The had tow sons A and B. A the eldest had passed away and has a son C. On the day my grand mother final rituals as done B the second son comes out and shows a will Written in the year 2007 stating that the entire property and gold and money shall go to B. it states that the son and widow of A and grandson have taken the money from them and broken all ties with the family and hence all the money shall go to B. But the truth is no such incident took place in fact the grandson of A was staying in same house on the date in which the will was written and pursing his studies while the mother worked in Chennai. My question is can C challenge the will. Would he have any right to claim the property. B states that he has taken care of the house all these years so it belongs to him. If the claim is possible how to proceed. Another important information is the witness in the will are both the employers of B and not the friends of the grand father

Answer 1

As per the CPC, a will can be challenged by filing a suit in a civil court. Suit contesting wills are commonly referred to as testamentary suits.

The general rule is that, those persons whose rights, title or interest are directly affected by the document can challenge the document.

C is the grandson of the deceased and therefore has the full right to challenge the will since he is Class I heir of the deceased’s estate.[1] The will can be challenged on the grounds of fraud/forgery, coercion or undue influence.[2] However, the burden to prove that the will was fake or re-constructed would lie on C, who is challenging the will.

In my opinion, if both the witnesses to the will are the employers of B and have had no acquaintance with the deceased, chances are that the will is either fake or has been tampered with. If the will is proved to be fake/altered it stands void. A will can be challenged on the following grounds:

  • Lack of due execution[3]: This includes things like the signature of the testator on the will, the signature of at least two witnesses who have seen the testator sign the will and it is not necessary for these witnessed to be present together while signing the will.
  • Lack of testamentary intent/capacity: since the deceased had been keeping ill for 4 years before dying, depending on the type of his illness, C can actually bring out the effects of illness (if any) on the cognitive abilities of the deceased. However, do not try challenge the will on this ground if the medical condition of the deceased had nothing to do with his mental soundness.[4]
  • Circumstances in which the will was prepared: this might include factors like what was the nature of the deceased, his relationship with his descendants or any possible backgrounds leading to the formation of the will.
  • Since the testator cannot be present to verify the terms of his testament, one can gather evidences from his acquaintances, friends, relatives, etc. If the will is prepared by a solicitor, it will be useful to consult with him, peruse the records and find out about the true intentions of the testator.

     

    [1] Section 10 of the Hindu Succession Act 1956

    [2] Section 61 of the Indian Succession Act 1925; the definitions of fraud, coercion and undue influence will be same as under the Indian Contract Act 1872 under sections 16, 15 and 17 respectively and forgery will be as given under Section 464 of the Indian Penal Code 1860.

    [3] Section 63 of the Indian Succession Act 1925

    [4] Natarajan and Anr. vs. Sree Narayan Dharma Sanghom Trust, MANU/KE/0309/1995; A.S. No. 2013 of 1988

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