In this article, Anubhav Pandey discusses the topic on, how to challenge a registered will in an Indian Court.
What is will
A man rules from his grave as regards to the devolution of his property after his death. A will is the intention of the person (testator) and his plans of what he wants to do with the property which he had acquired throughout his life. A will is the intention of a person for the time being as to who his successor would be.
Registration of the will
Section 18(e) of the Indian Registration Act, 1908 specifies that the registration of a will is optional. The mere fact that registration of the will is made optional, it cannot be said that because of its non-registration, an adverse inference can be drawn.
Who can get the will registered
The testator or after his death the executor of the will can get the will registered.
Why it is advised to get the will registered
It is advised that a testator should get his will registered under the provision of Indian Registration Act as it removes all the doubts of ingenuity revolving around the will. All the future ambiguities and hindrances are removed just by getting the will registered.
Where can a will be kept in a safe custody post registration
Any testator either personally or by any duly authorised agent deposit with any registrar his will in a sealed cover subscribed with the name of the testator and with a statement of nature of the document.
Can a registered will, be challenged in a court of law
- A will although registered can be challenged in the court of law. The mere fact that a will has been registered will not, by itself, be sufficient to dispel all suspicions regarding it. A registered will may not be the last testament. A new will made, even if unregistered, if valid, will trump the registered will.
- If there are any suspicious facts, the court will scrutinize the will even if it is registered.
Grounds for challenging a will. Registered or unregistered
A will irrespective of its registration can be challenged on the following grounds,
- Undue influence
- Suspicious nature
- Lack of due execution
- Lack of testamentary intention
- Lack of testamentary capacity
- Lack of knowledge and approval
A will containing any element of fraud, coercion or undue influence can be challenged
A will or any part of the will, the making of which has been caused by fraud, coercion, undue influence is bad in the eyes of the law. It is well-settled law that once the execution of a will is proved, the burden to prove that it was fabricated or manufactured or was obtained by committing fraud, coercion or undue influence is upon the shoulder of objector of such will. Fraud can be said to be a willful act on the part of anyone, where another is sought to be deprived of illegal means of what he is entitled to.
A will containing any element of suspicious nature can be challenged
Wills having suspicious nature such as,
- Execution of two wills at a time, the first being designed vaguely and the other supplementing it. Or,
- Purchasing of number of stamps for writing out the will, or,
- Too many thumb impressions, thereby confusing all with one another,
- Giving the property to someone who not remotely close to the testator,
- When the will is was executed in the hospital, and the same was not mentioned in the will,
Lack of due execution
A will must be made by the testator and duly signed by him. Signature or thumb impression of the testator is not the only requirement. Along with the testator, the will must contain the signature or thumb impression of two witnesses, witnessing that the will belongs to the testator. If any if these is not present, there is a lack of due execution in the will and the same can be challenged in the court of law.
Lack of testamentary intention
The wordings used in the will is to be followed religiously as it is the only desire left of the testator as to what is to be done with his property. It is the desire of the testator which is to be executed. If the will contains any element which shows that, any provision made in the will might be against the testamentary intention of the testator, the same can be challenged in the court of law.
Lack of testamentary capacity
The testator while making a will
- shall understand the nature of the act and its effects;
- shall understand the extent of the property of which he is disposing;
- shall be able to comprehend and appreciate the claims to which he ought to give effect and,
- that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
How to challenge a registered will in an Indian court. Procedure to be followed
Step 1 Filing of the suit
The registration of case with the appropriate seat under the civil jurisdictional court. Different Indian states have different nomenclature of courts where matters relating to registration of documents are filed under section 18 of the Registration Act. Different courts have different form number for matter relating to registration of instruments.
Step 2 Issuing of Vakalatnama
Through Vakalatnama, a person gives all the authority to a lawyer to represent on their behalf. No tax is levied on the paper of vakalatnama, but nowadays various high courts have started to issue stamp papers of various denomination.
Step3 Paying of requisite court fee
In Maharashtra, for example, a court fee of INR 25 is payable for assets less than INR 50,000; 4% of assets between INR 50,000-2 lakh, and 7.5% for assets over INR 2 lakh. There is a ceiling of INR 75,000.
Step 4 Initiation of proceeding and writing of statement
After the case is accepted, the court will release summons issuing notice to the opposite party to appear before the court. Before such date, the defendant is required to file his “written statement,” i.e. his defense against the allegation raised by plaintiff, within 30 days from the date of service of notice, or within such time as given by the court. The burden of proof is on the person making the allegation on the will to prove that such will is mala fide in nature and do not represent the intention of the testator.
Step 5 Filing of several documents in support
Legal heir certificates, and other required documents. And lastly, listing of witnesses and due process of hearing.
Tips for contesting will
- You must have a solid ground for contesting the will. By solid ground, it is meant that there must be elements of fraud, coercion, undue influence, suspicion present in the will.
- Take actions as soon as possible. Once the will has been executed as per the clauses of the will, it becomes a difficult task for the court to administer or facilitate the redistribution of property. Therefore, if you think the will needs to be contested, do it quickly. Do not wait for a long period.
- Consult a good legal advisor. Do not depend upon hearsay. Good legal advice is the last thing which you need in critical matters like these. One wrong advice can shake the whole ground!
- Any person who has possession of a property has a huge advantage.
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AIR 1951 SC 139
Sushila Devi v Pandit Krishna Kumar 1971 SC 2236
Law of Wills, Justice P.S. Narayana
Is it possible to Share the Sample Draft for the Affidavit for the Challenge of Will.
I would like to Challenge a will in person in Court and I need to file Affidavit for the same.
Can You Share the Format and Sample Affidavit ?
Our land has only registered but mutation has not done can we get back our property by challenging it in the court..