Will

Querist : Anonymous (Querist) 21 April 2010 This query is : Resolved

Sir,

If will is written by testor without the knowledge of her son in favour of her daughter leaving her son out of the will, not mentioning in the will, even though testator has lived with the son till her last breath. The entire life time of testator daughter and son-in-law tortured and abused and there relation between the testator and , daughter and son-in-law is strained still they hold a will.

Can his son claim the property by filing a partition suit.

What are the conditions valid for suspicious circumstances surrounding the will.

Please advise

Thanking you,

M.S.

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R.R. KRISHNAA (Expert) 21 April 2010
Suspicious circumstances will a lot depend on the circumstances under which the will was executed, the mental and physical health of the testator and absence of any valid reason for omitting other legal heirs and any detection of cloud on the will in respect of the intention of the testator etc etc.

In the facts mentioned by you there appears to be suspicious circumstances and certainly if you have any bonafide proof of document or complaint that the mother was tortured by the daughter and inlaws or any oral evidence could be let in by the neighbours or other independent witness to show the existence of suspicious circumstances would help the case of the son.

But please note that the son has duty to prove before the court that there exists more serious factors that were beyond the suspicious circumstances to hold that the will is obtained under force or fraud or coercion or undue influence.

Partition suit is not the remedy for the son. The son has to file a civil suit for declaration that the will is invalid.

Parveen Kr. Aggarwal (Expert) 21 April 2010
The son can challenge the will by claiming relief of declaration for setting aside the will and may claim relief of partition in the same suit.

The facts mentioned in your query can be termed as suspicious circumstances surrounding the will.

G. ARAVINTHAN (Expert) 22 April 2010
As mentioned by my friends, Son can file a suit for declaration of the Will that it is void and not a one executed by mother and only claimed by the daughter

G. ARAVINTHAN (Expert) 22 April 2010
But onus of proof lies upon Son , that he have to prove will by stating any defense against the will, that mother is not in good condition while executing the will and other things