Gaurav Mittal 07 March 2023

Is declaration suit maintainable in case of unregistered will

Dear Sir/madam,

My father had written a will in Feb 2020 and had got it notarized. His assets are to be divided between his successors - my mother, myself and my married sister. In Sep 2020, he passed away. Now there is a dispute between my sister and the rest of us related to the will. For the same, on advise of an advocate, we filed a declaration suit in Aug 2022, petitioned by my mother wherein me and my sisters are the defendants.

Now as per another advocate, the declaration suit is not maintainable in case of an unregistered will and he has suggested to go for a probate instead. I've read many articles online which confirm that an unregistered will is equally valid. I am confused & seek your guidance whether the declaration suit is fine in my case or should I go for a probate? Probate will involve a significant court fees.

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7 Replies

Shashi Dhara 07 March 2023

First you have to prove will is genuine ,will registration is not compulsory , obtain p& SC.

Gaurav Mittal 07 March 2023

Thanks for the reply. Isn't declaration suit meant to prove the genuinity of the will? My question is that can one file declaration suit if the will is only notarized?

Shashi Dhara 07 March 2023

You have to prove will properties belongs to you as per will and to prove it in court ,even it is declaration suit you have to exibit will and prove it.

Dr J C Vashista (Advocate) 08 March 2023

Notarised will is valid for self acquired properties of your father, which has to be proved for properly executed by the Testator i.e., deceased.

When there is "some" dispute in "will" it shall have to be probated by competent civil court.

Filing of declaratory suit is misconceived and "wrong" advise which is not maintainable and likely to be dismissed, if not withdrawn with liberty to re-file.

Gaurav Mittal 11 March 2023

Dear Dr. Vashista,

What is the purpose of a declaration suit in that case, if the will has to be probated anyway?

Dr J C Vashista (Advocate) 12 March 2023

Dear Mr. Gaurav Mittal,

Did you analyse my opinion and advise properly as I have clearly stated that filing of declaratory suit may not be considered in the facts posted ?

Thanks and regards

Dr. (Maj) J C Vashista

Shashi Dhara 12 March 2023

To file declaratory suit the party should have right ,title and interest over that property ,so first you have to prove will as genuine and to get right and title over it in competent court of law after that if anyone Denys your title then you can file declaratory and injunction suit .