GROUNDS FOR CHALLENGING A WILL IN INDIA

Section 2(h) of Indian Succession Act, 1925 provides the legal definition of will, “Will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.” It is an instrument by which a person makes disposition of his property to take effect after his death, and which is in its own nature, ambulatory and revocable during his life. 

A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. However, Mohammedan are not governed by this act, they can dispose their property according to Muslim personal Law. 

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. A will irrespective of its registration can be challenged. 

 Grounds for challenging a will are: 

  • Fraud 
  • Coercion 
  • Undue influence 
  • Lack of due execution 
  • Lack of testamentary intention 
  • Lack of testamentary capacity 
  • Lack of knowledge and approval 
  • Forgery 
  • Revocation 
  1. Fraud, Coercion or Undue Influence- 

A will or any part of the will, the making of which has been caused by fraud, coercion or undue influence is illegal in the eyes of law. After execution of the will has been proved, if the will is obtained by fraud, coercion or Undue influence then the burden of proof lies on the objector. 

  1. Lack of due execution 

A valid will has to be in writing, and signed by the testator in the presence of two witnesses, witnessing that the will belongs to the testator, who must also attest the will. Along with the testator, the will must contain the signature or thumb impression of two witnesses. If any of the above-mentioned condition is absent then there is a lack of due execution in the will. 

  1. Lack of testamentary intention 

Will is the intention of testator which is executed after his death. 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. 

  1. Lack of testamentary capacity 

The testator of a will should be eligible by law to make such a will. The law requires that a person making a will must be above 18 years and of sound mind. 

  1. Lack of knowledge and approval 

The testator must have the knowledge and approval of the will, he is making or signing. If the testator had testamentary capacity and the Will has been duly executed the Court will presume that the testator knew and approved the contents of the Will. 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. 

  1. Forgery 

The burden of proof would be on the objector to establish that a Will was forged or was made as a result of a fraudulent act. 

  1. Revocation 

It is the claim made by the family members. A family member can challenge a will on the grounds that they were not provided for adequately in the will.  

In Gnanambal Ammal v. T. Raju Aiyar, The Supreme Court held that the cardinal maxim to be observed by the Court in construing a Will is the intention of the testator. This intention is primarily to be gathered from the language of the document, which is to be read as a whole.  

In Shivakumar & Others. V. Sharanabasppa, the Court held that if a person challenging the Will alleges fabrication or fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him. But even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free Will. 

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at secondinnings.hr@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.