Challenge of wills...
Querist :
Anonymous
(Querist) 17 January 2011
This query is : Resolved
What are the most common grounds a WILL IS challenged in the court of law ...
If the Will is notarized ... does it make easier to handle such a will in the court if challenged ...Is the Notary a Witness to the Will ...
If the will is registered.. on what grounds can it be challenged ... is the Registrar a witness to the Will ...
Y V Vishweshwar Rao
(Expert) 17 January 2011
1- The Testator must have rights to bequeath
the property - subject matter of the Will Deed
2- The Testator must know what Document he is executing - with his free will and consent - with out any coercion , deception , cheating , and undue influence on him . It must be fair, reasonably and voluntarily and there should not be any suspicious Circumstances .
The Will Need Not be Stamped adn need nto be Registered !
Whether Will Deed is Notarized /or/ Registered / or / executed on white paper /or/ cover Sealed Will Deed is opened and Registered after the testators death - are not material things !
The above aspects to be proved .
Amit Minocha
(Expert) 17 January 2011
he will needs to be proved under the law as per section 63 of Indian succession Act and section 68 of Indian Evidence Act
Sachin Bhatia
(Expert) 17 January 2011
GROUNDS FOR CHALLENGING THE VALIDITY OF A WILL
Under English law a person who makes a Will (the testator) can decide to leave their assets to whomever they wish
when they die, however unpopular that decision may be with disappointed relatives (although the Court can override
the terms of a Will in certain limited situations under the Inheritance (Provision for Family and Dependants) Act 1975.
However, the validity of that Will can be challenged on any of the following grounds:-
• Lack of due execution
A Will must be in writing and signed by the testator (or signed by someone else in the testator’s presence and
as instructed by the testator) in the presence of two witnesses, who must also sign the Will in the presence of
the testator.
• Lack of testamentary intention
You would have to show that the testator had not intended to make a Will. It is usually clear on the face of the
Will that it is designed to take effect as a Will so this ground is rarely used.
• Lack of testamentary capacity
The testator had to be capable at the time that the Will was executed of deciding to make a Will and deciding
to leave his assets in the way set out in the Will. If he was unable to make that decision for himself because of
an impairment of or disturbance in the functioning in his mind or brain (whether because of mental illness or
because he was under the influence of alcohol, drugs or medication) he would not have had sufficient capacity
to make a valid Will.
• Lack of knowledge and approval
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 – unless the circumstances surrounding the preparation of
the Will cause the Court to be suspicious (e.g. because the main beneficiary under the Will prepared it).
• Undue influence
The burden of proof would be on you to show that the testator had been unduly influenced by a third party to
make his Will in the terms that he had.
• Fraud or Forgery
The burden of proof would be on you to establish that a Will was forged (i.e. someone other than the testator
signed the Will) or was made as a result of a fraudulent act (i.e. the testator was misled into making his Will on
the terms he did).
• Revocation
If, after making his Will, the testator destroys the original, makes a later Will or marries, that Will will have been
revoked and will not be valid.
Sachin Bhatia
(Expert) 17 January 2011
Importance of Evidence
In the case of any challenge to the validity of a Will the key witness – the testator – will obviously not be available to
give evidence. Accordingly, obtaining evidence from other sources (e.g. others’ recollections; documents etc) is
crucial. If a solicitor drafted the Will, asking to see their file is a good starting point.
Time Limits for challenging a Will
There is no statutory time limit for claims to challenge a Will. However, in the event of inexcusable delay, a substantial
lapse of time (with knowledge of the potential claim), or acceptance of a benefit given under a Will, the Court could
conclude that the claim should not be allowed to proceed.
What happens if the challenge is successful?
If the Will’s validity is successfully challenged the testator’s assets will be distributed in accordance with the testator’s
previous valid Will or (if there is no previous valid Will) the intestacy rules.
