Civil Procedure Code (CPC)

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Minakshi Singh   17 July 2021

Disinheritance from fathers self acquired property

My father had 04 children's. Before his death he made a registered will disinheriting 02 children from his property on the context that these 02 children do not take care of him and he likes the other 02 children more. In the will he has written that 1/2 part of all his property will go to child no 1 and other 1/2 part will go to child no -2. There is no specific details of property descripttion in the will and the sentence used is all movable and immovable properties. My mother is attesting witness to it and is not a beneficiary in the will. The other witness to the will was an old illiterate lady who is no more alive. Can this registered will be challenged in any court of Law. If yes please guide where and how should I proceed.

Read more at: https://www.lawyersclubindia.com/experts/modify_message.asp?entry_id=908150



 7 Replies

Shubham Bhardwaj (Practice)     17 July 2021

Dear Mr Singh, 

A 'Will' is normally challenged on these 2 grounds apart from other i.e. (1) Testator not in mentally fit condition at the time of execution of 'Will' or he was pressurized to make the 'Will', (2) the property disposed off in the 'Will' was inherited property and not his self acquired property, therefore testator had no power to execute will in respect of these properties. Further, there are other technical grounds such as 'Will' is not drawn as per provisions of ISA (Indian Succession Act) etc etc. 

Regards

Shubham Bhardwaj (Advocate)

District & Session Court, Chandigarh

Punjab & Haryana High Court, at Chandigarh

 

Disclaimer:- Opinion is only for guidance. 

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Minakshi Singh   17 July 2021

Thanks Sir for replying to my query. 

The fathers property is self acquired property. You have rightly said he (My Father) was under pressure while making this will.

srishti jain   19 July 2021

According to the scenario you have mentioned, let me brief you about the grounds on which a will can be contested.

The will can be contested on seven grounds which are- Lack of due execution, Lack of testamentary intention, Lack of testamentary capacity, Lack of testamentary capacity, fraud, forgery or undue influence, Lack of knowledge or approval, and Revocation: Claims by family.

You can challenge the will on the grounds of Revocation: Claims by family. As per law, the head of a family is responsible for the proper maintenance of certain close family members who are specified in the Hindu Succession Act. You can claim in the Family Court or the High Court asking for provision to be made for you out of the estate.

It is advisable to challenge the will in the court as early as possible in order to prevent its execution. If the will is executed, then the will would be termed invalid and the court would distribute the property as if no will ever exist.

Hope it helps,

Regards,

Srishti

1 Like

Minakshi Singh   19 July 2021

Thanks a lot

Vasundhara Singh (Student)     19 July 2021

Hello!  

An individual has absolute rights over his self-acquired property and it can be disposed of in any manner wished by the owner. Self-acquired property owned by the father can be disposed of by him either through will, gift, sale, etc and his legal heirs cannot claim any right in it. If the individual dies intestate without a will, then only his property can be claimed by his heirs.  

In your case, it is mentioned that the property owned by your father was self-acquired and therefore he has all the rights to bequeath it to any 2 children and eliminate the others. It is his power to amend or change the said will while he is alive and after his death, it will be enforced on the parties and it cannot be amended or changed by any other individual. All the properties mentioned in the will, movable and immovable will be distributed to the beneficiaries according to the provisions mentioned in the will and they will become the owners of the said property.  

Regards  

Vasundhara Singh  

Minakshi Singh   25 July 2021

Originally posted by : Minakshi Singh
My father had 04 children's. Before his death he made a registered will disinheriting 02 children from his property on the context that these 02 children do not take care of him and he likes the other 02 children more. In the will he has written that 1/2 part of all his property will go to child no 1 and other 1/2 part will go to child no -2. There is no specific details of property descriptttion in the will and the sentence used is all movable and immovable properties. My mother is attesting witness to it and is not a beneficiary in the will. The other witness to the will was an old illiterate lady who is no more alive. Can this registered will be challenged in any court of Law. If yes please guide where and how should I proceed.

Read more at: https://www.lawyersclubindia.com/experts/modify_message.asp?entry_id=908150

In the above cited case, now all the legal heirs ( 4 Children+ Widow) want to distribute the property left by the deceased father equally. All are agreeing on 1/5 part each for the property left behind by the deceased father. Can all 5 legal heirs enter into a family settlement deed and register it, will this family settlement deed give legal right of 1/5th part each for the 02 left over(disinherited in registered Will) Children. Is family settlement deed given importance over WILL. Kindly guide

P. Venu (Advocate)     13 August 2021

In my understanding, there is nothing that prevents the beneficiaries of the Will from relinquishing their legacies and joining their mother and siblings in executing the settlement deed.

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