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Sita Vallabhav (service)     07 July 2015

How to prove a will

Respected learned professionals,

Brothers Vishnu, Mahesh, Ram, & Ganesh got their fathers property partioned in 1959 by registered partitioned deed.

In this partition, property of Mahesh and Ganesh is kept as joint property in the name of Mahesh and Ganesh together.

Mahesh was unmarried and he died on 1969 at the age of around 50.

This joint property is enjoyed by Ganesh and his family since the death of Mahesh who died unmarried.

All other brothers : Vishnu, Ram and Ganesh were married and has family and children. Vishnu, Ram and Ganesh have died.

Now, in 2015, the family of Vishnu and Ram approches ganesh's family demanding partition of the share of Mahesh for them claiming they are co-owners of the property.

But Ganesh's family tells them that, Mahesh under the will dated 1967 bequethed whole of his property in the joint holding to Ganesh only.

The will wrritten in 1967 is non registered but witnessed by two persons. The two witnesses are not alive now.

Family of Vishnu and Ram doubt the authenticity of the Will.

Now my doubt is, if the family of Ram and Vishnu approch court for partition suit, hether thy can challenge the auticity of the will as it is no registered.

Or how Ganesh's family prove the authenticity of the will as it is not registered and the witness have died now.

please enlighten me sirs,



Learning

 1 Replies

B.T. RAVI (LEGAL MANAGER)     07 July 2015

If the will was executed properly by following legal manner that property would be distributed in accordance with the will. For your information, will need not be registered in the eyes of law. In the absence of two witness, In the absence of both witnesses and self-proving affidavits, particularly if someone may want to contest the Will, it may be necessary to demonstrate to the judge that the signatures of the person who made the Will, and those of the witnesses, are genuine. That can increase legal expenses, require handwriting experts, and added to a family’s grief after a death

Will is valid if (1) it is in proper form, (2) it was signed by the person making the Will, (3), the person was an adult of sound mind, free from “undue influence,” coercion, fraud or mistake, and (4) it was properly witnessed by the required number of witnesses.

A Will that was valid when made remains valid, even if the person making the Will later becomes incompetent, or the witnesses should die. However, after the person’s death, the heirs who are seeking to have the Will admitted to probate have to produce some proof that the Will was properly signed and that’s where the witnesses come in. If the witnesses are unavailable, it can lead to delays and added expense for the heirs and the executor.

To anticipate the potential problems, “self-proving affidavits” are often used. They are statements signed by each of the witnesses under penalty of perjury, generally right after the Will is executed and witnessed, that the person making the Will did, in fact, sign it, appeared to be of sound mind, and was signing the Will freely. (In some states such statements must be signed before a notary public.) Your witnesses won’t have to testify as to your will’s validity when you die, for the affidavit speaks to the will’s validity and serves as extra insurance that they witnessed your signature. This “Self-Proving” Affidavit also avoids problems that may arise if the witnesses cannot be located.
Sources: https://law.freeadvice.com/estate_planning/wills/what-if-will-witness-dies.htm#ixzz3fD9BAHiQ 


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