How to challenge a will the Indian court of law
What is a Will?
A will/testament is a legal document which states the wishes of the testator as to how his/her property be distributed at or after the death. The Will also state the names of one or more individuals, the executor, to manage the land until its final distribution.
Who can challenge the will?
A person who feels that he/she is denied sufficient benefit under a Will even when he/she fits certain criteria, that person can contest the will.
How one can contest the Will?
There are several ways under which one can challenge a Will in Indian court of law. They are:-
- The Family Protection Act, 1955.
- The Law Reform (Testamentary Promises) Act, 1949.
- The Property (Relationships) Act, 1976 and
- By confronting the legal validity of the will.
If a person is a close relative and is not provided for accordingly as he/she should, then the will can be challenged under the FAMILY PROTECTION ACT in the Family Court or High Court. This law of 1955 allows husband or wife, or civil union or de facto partner (including a same-sex partner), child, grandchild, dependent step-child, parent, if reliant on the deceased or if no spouse, partner or child of the deceased living to apply to the Court.
The court will uphold the claim if it believes that the deceased failed to fulfill his/her moral duty to provide appropriately for the maintenance and support of the family members.
If the late promised to include a person in the will in return for services rendered to him, then also the will can be challenged as per the TESTAMENTARY PROMISES ACT/LAW REFORM Act.
If a person is a husband or wife of the deceased, or had a civil union or was a de facto partner, then he/she is qualified to have the property of the relationship distributed under the equal-sharing rules as per the PROPERTY/RELATIONSHIPS ACT.
Even if you are not a close relative, you may be able to bring a claim under this law. However, one needs to produce satisfactory proof of the promise which can sometimes be difficult. Evidence can be written or oral.
The PROPERTY (RELATIONSHIPS), ACT 1976 statuses that the legal spouse/civil union/de facto partner (including a same-sex partner) of a deceased person can rightfully contest a Will under the equal-sharing rules of this Act for his/her share.
One can also challenge the legal validity of the will if one has proof that:
- The deceased/testator was of unsound mind or was mentally incapacitated when he/she signed the will.
- The testator was not aware of and approved the will’s contents when he/she signed it.
- The will was not duly signed and witnessed.
- The testator or the deceased was under “undue influence” when he/she confirmed the will.
If the trial is successful, then previous will comes into force. But if there is no earlier will then the departed are said to have died “intestate” which means without leaving a valid will, and the law next dictates how the deceased’s assets are divided.