A will is the legal document of a person’s (testator) intentions regarding the distribution and use of their assets after his or her death. This is the gist of the Indian Succession Act 1925’s definition of a will.
A will can be revoked only in the lifetime of the will-maker. Hence, it is typically hard to challenge a will, mostly because courts hold the view that the will-maker is dead and cannot defend his/her position. Nevertheless, if you are the aggrieved party and convinced of your position, there are legal routes available to challenge a will.
Registered and Unregistered Wills
The law does not mandate the registration of a will. The law requires that the testator sign a valid will in the presence of two witnesses and that the witnesses attest to the will.
However, if one chooses to, the will can be registered at a local registrar or sub-registrar’s office. However, registration does not necessarily authenticate a will.
In case of a dispute, the latest will trumps the registered one.
Laws
India has religion-specific laws such as the Hindu Succession Act, the Sharia Law for Muslims, the Christian Succession Act, etc. However, the Indian Succession Act supersedes all of these. Non-resident Indians should understand the particular Succession Act that applies to them.
Grounds for Challenging a Will
You can file a court case if you are convinced that a will is fraudulent, was made under duress, or was not supposed to be there at all. Indian courts accept challenging a will on the following grounds:
- Unwritten and unattested: A will is invalid if it is not in writing. A written will should have the testator’s signature and attestation by two witnesses. In the absence of one or all of the above, one can challenge a will in court.
- Absence of testamentary intention: This is difficult to hold. A plaintiff might find it tough to prove if the testator had any intention to make a will.
- Incapable: Any adult can make a will. A plaintiff should prove that the will-maker was not of sound mind at the time of writing/signing the will, or that the testator was not sufficiently aware of the consequence of his/her actions.
- Ignorance: The will’s challenger should prove that the testator was unaware of the contents of the will at the time of signing.
- Fraud or forgery: If the plaintiff is convinced that the will was obtained by forgery, fraud, or undue influence. The challenger carries the burden of proof.
- Inadequate provisions: A family member can move that the court challenge a will if their concerns have been inadequately met.
Challenging Wills
In India, three laws are generally invoked to challenge a will. They are:
- The Family Protection Act, 1955
- The Law Reform (Testamentary Promises) Act, 1949
- The Property (Relationships) Act, 1976
The Family Protection Act, 1955
The Act is invoked to prove that a close relative has been inadequately provided for in the will. These cases are filed in the Family Court or High Court. The law covers spouses or partners (including same-sex partners), children, grandchildren, dependent step-children, or dependent parents. The court will uphold the claim if the plaintiff successfully argues the deceased’s moral failure to account for the maintenance and support of the family members.
The Law Reform (Testamentary Promises) Act, 1949
If the deceased promised but failed to include a person in the will in return for services rendered, then the aggrieved can challenge a will under the Law Reform (Testamentary Promises) Act, 1949.
The Property (Relationships) Act, 1976
The Act allows spouses or partners (including same-sex partners) to contest a will for a rightful share.
Probate
A court-certified copy of a will is called a probate. It’s granted only to the will’s appointed executor.
When Is Probate Required?
Probate is not mandatory, except in the circumstances as per specific provisions of the Indian Succession Act, 1925. However, these exceptions are not deemed relevant to the scope of the current article. Probate is essential if the will is for immovable properties across multiple states. Probates can also help in disputes with existing wills or when the beneficiaries have predeceased the testator.
Are Foreign Grants of Probates Valid?
Wills made abroad are not automatically enforceable in India. However, under specific statutes of the Succession Act, the courts can provide an ancillary probate to authenticate a foreign will.
Probate Caveat
A Probate Caveat is used to challenge a will. The caveat must be filed shortly after the testator’s demise. However, a failed caveat may mean that the plaintiff will have to pay the defendant’s cost in dealing with the caveat.
Challenging a Probate
Probates can be challenged. Some of the grounds on which the probate can be challenged are:
- Probate proceedings were defective in substance.
- False suggestions were made to or information was held from the court in order to obtain the probate.
- Changed circumstances have made the probate redundant.
Filing a Legal Suit Against a Will
Such cases are civil cases. The process for filing such claims is similar to that for a resident. The typical approach is given below:
- Register a case under the appropriate civil court. These cases are state subjects, and the court terminology varies from state to state.
- Authorize an attorney to represent you in court.
- Pay the required court fee.
