Will is a significant testamentary instrument through which a testator can offer his property in understanding his desires. An individual can guarantee how his property ought to decline and to whom it will lapse, after his passing, through a Will. Hence, it is ideal that one should make a Will to guarantee that one’s real intention is followed and the property is transferred as the needs of the testator are. Generally, it can be challenging to challenge a will, and almost 90% of the will’s go through without being tested. Seen by the courts as the voice of the testator or the will-creator, who is no longer there to protect himself, courts stick rigidly to wills. Be that as it may, assuming your interest in the will, you can challenge it. Furthermore, if you are effective in persuading the court, the will tends to be voided entirely or to some degree as it deems fit.
WHAT IS A WILL?
According to Section 2(h) of the Indian Succession Act, 1926 a “will” means the legal declaration of the intention of a testator concerning his property which he desires to be carried into effect after his death. A will is a written document that shows the intention of the testator (person making the will) as to who will be the successor of the property that he has acquired throughout his life. Every person who is of sound mind, and is not a minor is competent to make a will. A will that is obtained by fraud, coercion, or undue influence is void. Making of the will should be a voluntary act. The person who makes the will is known as the testator and the person and the person on whom the will is executed is known as the executor of the will.
REGISTRATION OF THE WILL
According to Section 18(e) of the Indian Registration Act, 1908 the registration of the will is optional and not compulsory. No provision in this act makes the registration of will compulsory as making it compulsory may lead to adverse consequences. It is always advisable by the legislature that if a will is made it should be registered for easy transmission of the property. Registration of a will ensures secrecy of the will and it also provides safety and security in case the original will gets destroyed for any reason a certified copy is always available with the registrar.
CAN WE CHALLENGE A REGISTERED WILL IN THE COURT OF LAW?
Yes, a registered will can be challenged before a court of law. There are certain grounds on which a registered will can be challenged.
Grounds on Which a Registered Will Can Be Challenged
- Fraud- A will obtained by fraud or registered by fraud is void in the eyes of law. Fraud involves willful misrepresentation of facts or providing any false statements. A registered will or any part of the registered will which is obtained by fraud can be challenged in a court of law. The burden of proof generally lies on the person who challenges the registered will.
- Coercion-An act of coercion is illegal in the eyes of law so a registered will obtained by any act that involves coercion is also unlawful. Coercion involves forcing a person to do something that they would have not done normally by making threats against their life’s safety and security. For example- A will is made and registered by pointing a gun at the testator’s head.
- Undue Influence-If the registered will is made under the undue influence of any member belonging to the family of the testator or any other person for that reason the will can be challenged under a court of law. Undue influence is a physiological process in which one party is in the position to dominate the other party to the will.
- Lack of sufficient witnesses- There should be at least two witnesses (above the age of 18 Years) present at the time when the testator is making a signature or thumb impression on the documents of the will. If the registered will is not made in the presence of at least two witnesses such a will can be challenged on the ground of a lack of sufficient witnesses in the court of law.
- Will having some sort of suspicious circumstances- A will can be challenged in the court of law on the ground that the registered will contain some elements of suspicious circumstances. For example- a shaky or blurry signature on the will or over-lapping of thumb impressions on the will may give rise to some suspicious circumstances and can easily be challenged in a court of law. The judgment in Kavita Kanwar v/s Mrs. Pamela Mehta & Others deals with characteristics and most arguments of suspicious circumstances to invalidate a will.
Suspicious circumstances may be-
- Execution of two wills all at once, the first being planned enigmatically and the other enhancing it. Or on the other hand,
- Buying of number of stamps for working out the will, or,
- Too many thumb impressions, accordingly confounding all with each other,
- Giving the property to somebody who is not somewhat near the departed benefactor,
- At the point when the will was executed in the clinic or the hospital and the equivalent was not referenced in the will.
- Error in the execution of the will- A will is made by the executor and must be duly signed by him in presence of two witnesses, witnessing that the will is made by the testator. If any of these conditions are not fulfilled then there is an error in the execution of the will and the same can be challenged in a court of law.
A Will is a vital part of an individual’s life as it concludes who will acquire all the property once the individual is dead. In this way, in a nation like India, it turns out to be vital that on the off chance that an individual views a Will shaped as unacceptable, he/she has the option to challenge the enrolled Will in the court to ensure there is no misconduct occurring. The enrolled Will can be tested for every one of the reasons referenced above. An individual should have a strong ground for challenging the will. By strong ground, it is intended that there should be components of extortion, pressure, unjustifiable impact, and suspicious circumstances in the will.
Make moves straightaway. When the will has been executed according to the provisions of the will, it turns into a troublesome errand for the court to control or work with the rearrangement of property. Subsequently, if an individual thinks the will should be challenged, do it as soon as possible. Try not to sit tight for a significant stretch. An individual can challenge a will for up to 12 years and if an individual makes a delay in challenging a will then he must give reasons for such delay.
Author(s) Name: Vanshika Srivastav (The ICFAI University, Dehradun)
 The Indian Succession Act, 1926, § 2(h), No. 39, Acts of Parliament, 1926(India)
 The Indian Succession Act, 1926, § 59, No. 39, Acts of Parliament, 1926(India)
 The Indian Registration Act, 1908, § 18 (e), No.16, Acts of Parliament,1908(India)
 The Indian Succession Act, 1926, § 63, No. 39, Acts of Parliament, 1926(India)
 Kavita Kanwar v. Mrs. Pamela Mehta & Others, (2020) Civil Appeal No. 3688