Challenging the Will after its validation
Querist :
Anonymous
(Querist) 18 January 2011
This query is : Resolved
Dear Learned Experts,
Here is an interesting legal issue on which I seek your valued opinion.
A civil suit was filed in the lower court in the year 1996 by an elderly childless widow. During the pendency of the suit, the plaintiff died immediately after a couple of months and the foster son impleaded himself and continued the suit showing the will executed by the old lady. The will was duly prepared with the help of an advocate and got registered in the sub-registrar’s office. The defendants challenged the will saying that the will was coerced one, deceptive with forged signature. However, the lower court after cross examining the advocate, the witness etc. declared the will as a valid one and delivered its verdict in favour of the foster son in the 2003.
The typical part is that the husband of the widow executed a settlement deed in the year 1934 in which he had stated that his wife could only enjoy the income derived out of the properties which he got as part of his portion out of the partition from his family property, without alienating the properties and the properties should go to the next legal heirs of them. The lower court in its judgment, ignoring the settlement deed, stated that since the widow is the absolute owner of the properties after the death of her husband, she has got every right to write the will to whomsoever she likes. Now please answer ot my queries:
1) Can the widow execute the will in favour of the foster son (widow’s elder sister’s daughter’s son) purportedly written in the year 1991 despite the condition mentioned in the settlement deed executed by her late husband who died in the year 1943 (and he has got his elder brother’s children alive) which stated that she could enjoy only the income derived out of the properties without alienating them and should go to the next legal heir? In the absence of the settlement deed, it is agreed that the lady can execute the will.
2) Is the order of the lower court is correct ignoring the 1934 settlement deed ?
3) While the appeal against the judgment delivered in the year 2003 also got dismissed in 2004, can it be challenged now by the other legal heirs who were not included in the suit filed in the year 1996 ?
4) If it can be challenged then where it can be filed, in the lower court itself or in the High Court ?
Thanking you in advance.
Amit Minocha
(Expert) 18 January 2011
yes, widow could execute the will as will comes into picture after the death of the testator only and she did not alienate with it during her life time.
The order doesnot seem to be ignoring 1934 settlement.
What were other legal heirs doing since 1996 till now ? they has least chances and no locus standii to challenge out by filing an appeal challenging 2004 orders of appellate Court.
