WHEN IT IS NECESSARY TO CHALLENGE A WILL IN THE COURT

Necessary to challenge a will in the court

This could very well pass off as the saga of relationships, confusions and chaotic disputes. Hemraj Vatsyan’s father Dwarka Dass had two wives. His first marriage with Kamla Dass ended up in a divorce and he then married Jagminder Kaur. He had three sons from his first wife and then adopted a girl, Peggy. Later after his divorce when he remarried, he had a son from his second wife. During his lifetime, he had accumulated properties near Amritsar and under the natural succession principal, all his children would have inherited. However, in the year 2010, he made a new will document in which he disowned his first wife, their three sons and the adopted daughter. Under this will, all his property was to be handed over to his son from the second marriage, Dilraj. Since Dilraj was still a minor, it was stated that nobody could sell the property till Dilraj would become a major. In addition, nobody could take guardianship of Dilraj.

There was another angle to the entire situation too. Dwarka Dass seemed to have a problem with his brother Tilak Raj. To sort out these problems and handle the case Dwarka Dass apparently gave power of attorney to Manjit Soni, his father’s brother’s son. However, after Dwarka Dass’s death in 2014, Manjit declared that Dwarka Dass had in fact made another will document wherein he had transferred some property in his name.

The Will Document

Hemraj had been a resident of Birmingham, UK for the past twenty years and by his own admission, he felt thoroughly baffled by the sheer web of complexities that seemed to loom large at him. He approached the NRI Legal Services office in Birmingham and explained that he needed to understand the current status of all the properties as also get the same evaluated. Along with that, he would be requiring legal advice on challenging his father’s Will since he felt there were some loopholes in it. For one, he was of the strong opinion that Dwarka Dass’s signature seemed forged. Also, as per the Will document, the Peggy also stood disowned from the property which seemed quite tough to believe. She with her three brothers wanted to not only challenge the father’s Will but also check if they could file a case against Manjit Singh to challenge the transfer of Dwarka Dass’s property to his name. Later, Peggy also came from the USA and joined Hemraj in some of the sessions he had at the NRI Birmingham office.

The other two brothers could also connect from India and it was easy for the four of them to have video chats and discussions with the legal experts of the company. Emails to and from the office, messaging availability, easy access to all lawyers and regular updating from the office kept the anxiety levels of the clients down to bare minimum. In time, Hemraj genuinely started believing that he needn’t even travel back and forth to India to sort out the property issues. Almost all of his work got done without his going there. The property search and evaluation work got completed without much ado. In time, they were also able to challenge the Will and gradually prove their point in the court. They kept their faith and after a long trial they won the case and got their rightful share in the land and property.

The entire mesh of relationships accepted and ignored, cases handled and fought, Hemraj said later on that coming to this office was like finding salvation when he had morosely started preparing himself for misery all life!

Grounds to Challenge a Will in The Court

challenge a will document

A will is the legal statement of an individual about what he wishes to do with his property after his death. It is the intention of an individual regarding the devolution of his property and what has to be done with the same. A will is registered under Section 18(e) of The Indian Registration Act 1908,however the registration of a will is optional. A will made by Hindu, Buddhist, Sikh of Jain is governed under the Indian Succession Act, 1925.  Every sound minded individual can make a will including the deaf, dumb and blind as long as they are aware about what they do by the same. An insane individual is allowed to make a will however only during the interval when he is sane. A will however, cannot be made in a state of either intoxication or illness, where he/she is unaware of what they’re doing.

Regardless of whether or not a will is registered or not, there are the following grounds on which a will can be challenged –

Lack of Testamentary Capacity – All individuals above the age of eighteen can make a will since adults have a testamentary capacity. In order to challenge a will on the basis of lack of mental capacity, it is necessary that one is able to prove that while making the will, the individual was unaware of its consequences.

Lack of Testamentary Intention – That the individual who made the will did not intend to make a will in the first place.

Lack of Knowledge or Approval – That the individual when signing or approving the will did not know what the will consisted of.

Undue Influence/Fraud/Forgery – A will can also be challenged by proving that the approval for the will (or the will on a whole) was made through fraud, forgery or undue influence without the real and valid consent of the individual.

Revocation (Familial Claims) – According to the Hindu Succession Act, all individuals should be adequately provided for in the will and if the same is not done, it can be contested.

Lack in Execution – A legally valid will has to be in writing and also has to be signed by the testator along with two witnesses. In case the process is not followed, the will is not considered to be properly executed.

A no-contest clause can be added but that is a practice that has weightage primarily in the US, however the extent of its validity too depends on the legislations of the state.