Handwritten will without witnesses
Moulder
(Querist) 12 April 2013
This query is : Resolved
My grandfather has written a will, in late 1950 Rajasthan, in his own handwriting and signatures, absolutely in legal language (as far as I know), but could not get it witnessed as he was in the hospital. He has very clearly defined each and everything that is being related to his properties, cash, his physical health etc.,. All the things are done in the past as per his will as we all know that they were the last wishes of him, but now as the time has passed, few of his daughters are claiming the right on the only left property, that he wanted to give to his two son's, where they live along with the grandmother, took very good care of her all these years. Even grandmother want that the will of her husband should be maintained. This is unjustified and they also know that their father has written this and given a copy of this to everyone mentioned then only, but they now say that the will is not legal as it is not witnessed!, And people say Sons don't care!:-)
1. Kindly, let me know if this WILL is accepted by the court of law, in-case they claim it legally now?
2. If not, then please suggest us a way, so we can execute his last wishes.
(Every page of the handwritten will is signed by the Grandfather)
Thanks for your precious time.
prabhakar singh
(Expert) 12 April 2013
1.may be unfortunate for you but that will is bad in law as the same has not been attested by two witnesses as required under law.
2.As it is known fact to every body including your opponent and every body has a copy of the Will,nothing is possible now to cure the defect.
R.K Nanda
(Expert) 12 April 2013
will is invalid .
Moulder
(Querist) 12 April 2013
My heartiest thanks to all of you, for your immediate responses. Court of law may have restrictions like these because we follow a path that is being written considering the frauds first, rather than the innocents (may be its vica-versa for real criminals). But the court of almighty only knows & values the truth. As per your answers, I can only pray that they should realize it on time.
Thanks again :-)
ajay sethi
(Expert) 12 April 2013
agree with experts
Vidhi Joshi
(Expert) 12 April 2013
will is invalid...but you can still try to go for out of court settlements with your aunts..
Devajyoti Barman
(Expert) 12 April 2013
It is out and out an invalid Will. No point in going to court to enforce it.
Sudhir Kumar, Advocate
(Expert) 13 April 2013
every will is for being challenged. This one is open and shut case.
Raj Kumar Makkad
(Expert) 13 April 2013
Nothing to add more in the given replies.
H.M.Patnaik
(Expert) 13 April 2013
In light of the given facts, it is adequately clear that the WILL is invalid . However, considering the fact that there is no WILL, all the Legal Heirs become the owner of the property in question after the demise of the title holder i.e. since 1950.
Now, the Grand mother can prepare a valid WILL in favour of the Grand children as regards her share in the property in question during her life time and you can enjoy the same over and above the share of your father in the said property. This can be a measure of damage control.
Besides, if your aunts are not in physical occupation of their share in the property and the same is being under your active possession without any litigation till now then, pl. consult a local experienced lawyer specialising in civil law whether the angle of " Adverse possession" can come into play.
Moulder
(Querist) 18 April 2013
Thanks for your response Mr Patnaik,I will give you more details here, so the experts can guide us whether to go to court or not.
1. As per my knowledge, in court of law you have to prove the intention, and for that the will is very properly written, where he has clearly described that why he is giving this property to his two sons cos he has invested equally on every of his daughters ,also after his death the cash in his bank should be distributed among his daughters (and that, we did!) and many other things. Way back in 1950's people don't have that appropriate knowledge of getting it witnessed AND THAT TOO BEING IN THE HOSPITAL, More ever, people at that time were simple living & didn't want to share the knowledge of the assets they hold even with the family, then why he will tell it to a third person or a neighbor???? but what they can do best is to mention their intentions on paper, and I think that if we were able to prove that the will is written by him only, we have a chance, WHEN COURT CAN ADMIT SOMETHING WRITTEN ON A WALL AS A PROOF (if found genuine) THAT WHY NOT THIS....AM I RIGHT?
(After-all WILL only means intent of the dead person)
2. For "adverse possession", YES, the property is in 100% possession of the two sons and the mother without any litigation as till date.
Kindly guide.
ashutosh mishra
(Expert) 18 April 2013
Like the WIL your understanding is also half correct.
Read below how law requires a WILL to be made.Note more carefully subsection (c).
Indian SUCCESSION Act:
63. Execution of unprivileged wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Moulder
(Querist) 18 April 2013
Thanks Ashutosh for your reply. I have read this act before also, but my point is that "to prove the intention of the deceased.", so lets forget it as naming it "A WILL".
My simple question to you experts is that if we can prove the intention and the genuineness (by hand writing experts/verifying with bank's signatures/verifying with government documents, he wrote and signed, etc.,.) of the testator, then do we have a chance that Court decides in our favor?
Simply, should we go to court to contest or will it be a time waste?
Thanks!
ashutosh mishra
(Expert) 18 April 2013
Had it been joined and signed by all parties
like a family settlement,it could have worked.
Moulder
(Querist) 18 April 2013
So, its like "the written intentions of the deceased does not matter to the court", if it is not signed by two known or unknown people!! Surprisingly, one has to take permission of all parties for his own assets or either have to disclose his personal information to other's to get it witnessed......
From your answer it looks like we should not even contest, right?
Sudhir Kumar, Advocate
(Expert) 18 April 2013
If you know the law then you need not post the blog.
Every WILL is for challenge. If the will is not witnesses then it is not valid.
Kumar Doab
(Expert) 12 November 2018
The WILL is invalid and may get termed as only a piece of paper having no legal effect…. neither in the nature of a will nor in the nature of transfer of the property!
The legal heirs/successors may not admit/accept the said WILL.
GO thru;
THE INDIAN SUCCESSION ACT, 1925; CHAPTER III Of the Execution of unprivileged Wills ; 63
that is already posted above.
Kumar Doab
(Expert) 12 November 2018
You may take help of elders of your family, competent and experienced well wishers, seasoned PIP’s, helpgroups, community leaders, NGO’s, experienced colleagues, associations, Religious scholars, etc to resolve the matter if any, and/or find a very able LOCAL counsel specializing in concerned filed of law e.g; Testamentary Succession/Civil matters as in your case, and well versed with LOCAL applicable rules, revenue codes/rules, precedence, latest judgments etc …. and worth his/her salt, can advise you and even help you.
Online discussions are not substitute to in person discussions with a very able counsel of unshakable repute and integrity specializing in concerned field of law.
There are such very able counsels at each location.
Check for such counsels at LOCAL e.g: Civil courts, HC, SC …
You can also try to get free legal advice from FREE Legal Aid that is usually in LOCAL courts Complex..preferably from a counsel specializing in concerned filed of law e.g; Testamentary Succession/ Civil matters.
Kumar Doab
(Expert) 12 November 2018
In the meantime you go thru;
Supreme Court of India
Narinder Singh Rao vs Avm Mahinder Singh Rao & Ors on 22 March, 2013
Author: ………..……………............J.
Bench: R.M. Lodha, Anil R. Dave
