A legal declaration as to whom the property is to be distributed or who will be the inheritor, executor or the time for the property transferred among the concerned beneficiaries, termed as a will. In the ordinary sense, the owner of the property disposes of his assets in the event of his death. The will is also termed as a testament and the person who wishes to distribute his property is known as a testator. As per the Indian Registration Act as it is to be registered under section 18(e), will is used as a strong legal evidence but still the registration of a will is optional in India.
Who all can make a will?
All those wills which are made by a Hindu, Sikh, Jain or Buddhist is controlled by the Indian Succession Act, 1925.
A will can be made by a person who is of sound mind, sane including those who are deaf, dumb, or blind if they are aware of what they are doing. An insane person can also make a will on a period of time when he is sane. But a person who is in the intoxication state or illness or he/she is not aware of their doing cannot make a will.
A will should be clearly evident regarding the intention of the testator. Also, the will would become invalid if the testator would be living his life; it is only used in the event of his death. Oral will is valid in some limited states or under special circumstances. In the case of Bhura vs. Kashi Ram the hon’ble Supreme Court, held that the main duty of the court is to understand the intention of the will maker. Whatever he is intending to say through the will should be understood by the court or favors unless it is contrary to the law.
Will and probate of a will
Will and probate of a will has their own significance. Will termed as a legal document as to the event of one’s demise in order to the distribution of the assets, whereas the probate of a will is a certified copy under the seal of a court of competent jurisdiction. A probate is given only to that executor appointed under the testament. If the will is made under these three presidency towns i.e., Kolkata, municipal limits of metro cities of Chennai or Mumbai or if the concerned immovable property is situated therein, then the probate is compulsory otherwise it is optional. Also the court after seeking all the objections from the concerned families; if finds no objections then the court accords the probate and the will with a legal effect comes into force.
Grounds to challenge a will in a court
Challenging a will can be intimidating. Majority of the wills are not challenged in the court as the court finds it to be true because the person is demised and is not able to defend himself so the court stick to the will only. But, if one finds an interest in the will or testament, he/she can challenge the will in the competent court. In spite of the will is registered or not a will can be challenged in the court on the following grounds:
Lack of testamentary capacity: As per the regulations, a person who is at the age of 18 years or more has the testamentary capacity as per section 59 of Indian Succession Act. However, a person can challenge the testamentary capacity of a testator, that when the testator made the testament he was not of sound mind or there was a lack of mental well-being. A testator would be aware or understand the nature, value and repercussions of his assets by signing a will. To legally oppose the testament, the opposition needs to prove that the testator was unaware of the repercussions.
Lack of testamentary intention: Another important ground to challenge a will in a court of law is to challenge the testamentary intention. One can prove that the testator was not intended to create a testament.
Fraud, forgery or undue influence: A will could be challenged on the ground o0f forgery, fraud or criminal or undue influence by any person who overpowers the will because of the manipulator. If it is proved that the will is made under the deceitful act, then it can be rejected by the court of law.
Absence of knowledge or approval: In general, it is presumed that the testator is well aware of the testament as in what does it contains as he has the testamentary capacity. But, in some circumstances one can take a necessary ground to challenge the will by proving that when he was signing the document, he was unaware of the details enclosed with the will.
Revocation-claims by family: If the family members are not adequately provided into the will, they can claim the sufficient share or demand the revocation on this ground. They need to prove that they are not sufficiently provided and as per the byelaws or regulations, head of the family is responsible for the proper maintenance as per the Hindu Succession Act.
Lack of execution: There is a prescribed manner in which the will is to be made. A will should be in writing and there needs to be two attesting witnesses while signing. If by some case, there is an absence of the due execution; the will becomes invalid and one can challenge the will in the court of law and it.
Will is a major legal document and it is intricate to challenge a will. In majority of the cases, wills are not challenged in the court as it founds it to be true because the testator is no longer alive to defend himself. It is practical and one should keep in mind that the burden of proof is on the person who is challenging the will in the court of law.