Challenging A Will: Indian Law Basics

In India, a will can be challenged in a court of law for several reasons. While the Indian Succession Act, 1925, outlines the rules of succession and how a will is to be made, it does not specify who can challenge a will. However, it does provide grounds on which a will can be contested, such as fraud, coercion, undue influence, lack of due execution, suspicious circumstances, uncertainty, and illegal or immoral conditions. The intentions of the testator must be clearly stated to avoid disputes and legal challenges. Additionally, while will registration is optional, it can add an extra layer of authenticity and reduce the potential for disputes. It is important to note that there is no time limit to challenge a will in India, but prolonged delays must be justified for the courts to accept the case.

Fraud, coercion, undue influence

In India, a will can be challenged in a court of law on several grounds, including fraud, coercion, or undue influence. These grounds are outlined in the Indian Succession Act, 1925, and the Indian Contract Act, 1872.

Fraud

Fraud is a willful act of depriving someone of what they are legally entitled to by illegal means. It is considered a ground to challenge a will when it is committed by any party involved in the making of the will. For example, if a beneficiary is not remotely close to the testator, it may indicate fraud. Proving fraud can be complex and usually requires legal guidance.

Coercion

Coercion occurs when an individual is compelled to enter into a contract or make decisions in a will through the use of force or the threat of force. This can include threatening to commit an act prohibited by the Indian Penal Code (IPC) or unlawfully detaining or threatening to detain property. For instance, if a beneficiary threatens the testator to include them in the will, it would be considered coercion.

Undue Influence

Undue influence is a more complex concept and can be challenging to prove. It occurs when one party dominates the will of another due to their relationship, position of power, or the mental weakness of the other party. This domination is used to gain an unfair advantage, such as an unreasonable amount of assets. For example, if a beneficiary is a caregiver or has a fiduciary relationship with the testator and receives a substantial portion of the assets, it may indicate undue influence.

To successfully challenge a will on the grounds of fraud, coercion, or undue influence, it is essential to seek legal advice and act quickly. The burden of proof lies with the objector of the will, who must provide evidence that the will was fabricated, manufactured, or obtained through improper means.

Lack of due execution

In India, a will can be challenged in a court of law on several grounds, one of which is the "lack of due execution". This refers to the formalities that must be adhered to when drafting a will to ensure its validity.

According to Section 63 of the Indian Succession Act, 1925, a will must be made by the testator and duly signed by them, along with the signatures of two witnesses, all done in each other's presence. The witnesses, by signing the document, affirm that they have witnessed the testator's signature. This is a critical step in ensuring the will's authenticity. The intention of the testator must be clear, and the will must unambiguously outline how and to whom the assets are to be distributed.

The case of Wright v Rogers [1869] sets a precedent that "the strongest evidence" is required to challenge due execution. If sufficient evidence cannot be provided, the presumption of due execution shall remain. This was seen in the case of Channon v Perkins [2006], where the two witnesses stated that they did not sign the will in the testator's presence, but the judge found their evidence to be poor and vague and thus insufficient to prove a lack of due execution.

On the other hand, Murrin v Matthews [2006] saw the claimant successfully rebut the presumption of due execution as the two witnesses could not be traced, and so there was no evidence to support due execution. Another case, Burgess v Penny & Anr [2019], involved a will that was drafted and executed with the assistance of one of the testator's children. Upon the testator's death, the will was found to be grossly in favour of the child who assisted, and the validity of the will was challenged by the other two children.

It is important to note that while a will should be dated to ensure it is the last will of the deceased, a date is not required for a will to be valid. However, the absence of a date can lead to disputes regarding whether the will was properly executed and may require investigations into the circumstances surrounding its execution.

Suspicious circumstances

In India, a will can be challenged in court if suspicious circumstances or unusual features surround its execution. According to the Supreme Court of India, a circumstance is considered "suspicious" when it is not normal or is "not normally expected in a normal situation" or is "not expected of a normal person".

Some illustrative instances of suspicious circumstances could be:

• A shaky or doubtful signature of the testator: The genuineness of the testator's signature is a key factor in determining the validity of a will. If the signature is shaky or doubtful, it may indicate that the testator was of an uncertain mind or under some form of coercion or influence.
• Feeble or uncertain mind of the testator: If the testator is of an unsound mind, blind, deaf, or otherwise not fully aware of the situation and the consequences of making the will, it can be considered a suspicious circumstance.
• An unfair disposition of property: If the disposition of property in the will is unnatural, improbable, or unfair in light of relevant circumstances, it may be considered suspicious. For example, if the will excludes the only child without plausible reasons or gives property to someone who is not remotely close to the testator.
• An unjust exclusion of legal heirs, particularly dependants: If the will excludes legal heirs, especially those who are dependants of the testator, it may be considered a suspicious circumstance.
• An active or leading part in making the will by the beneficiary: If the major beneficiary played an active and major role in the execution of the will, which would confer on them substantial benefits, it would give rise to suspicious circumstances.

It is important to note that such suspicions should be real and valid and not merely a fantasy of a doubting mind. The burden of proof lies with the person challenging the will's validity, and they must be able to prove that the will was fabricated, manufactured, or obtained by committing fraud, coercion, or undue influence.

Uncertainty

To avoid uncertainty, it is crucial to ensure clarity in the intentions outlined in the will. The document should clearly and unambiguously state how and to whom the assets will be distributed. Vague language or open-ended statements should be avoided as they can lead to misinterpretation or disputes among heirs. It is recommended to seek professional guidance when drafting a will to navigate the complexities of Indian succession laws and anticipate potential challenges.

While there is no mandatory requirement for will registration in India, it is advisable to register it under the Indian Registration Act. Both registered and unregistered wills are legally valid, but registration adds an extra layer of authenticity and reduces the potential for disputes. The will must be in writing, signed by the testator, and attested by at least two witnesses. These witnesses must sign the document, affirming that they have witnessed the testator's signature.

Challenging a will in India can be done on various grounds, including fraud, coercion, undue influence, lack of testamentary capacity, illegal or immoral conditions, and lack of due execution. The Indian Succession Act, 1925, provides comprehensive provisions detailing how a will is made, its validity, and grounds for challenge. The act applies to wills made by Christians, Hindus, Sikhs, Buddhists, and Jains, while Muslims are governed by separate rules of succession.

Void bequests

A will can be challenged in an Indian court of law on several grounds. One of the most frequently cited reasons for challenging a will is undue influence, where the testator is coerced or manipulated into making decisions that they would not have otherwise made. Proving undue influence can be complex, as it requires demonstrating that the testator's free will was overpowered by another individual.

Another ground for challenging a will is a lack of due execution. As per Section 63 of the Indian Succession Act, 1925, a will must be made by the testator and duly signed by them, along with the signatures of two witnesses in the testator's presence. If any of these requirements are not met, the will can be challenged in court.

• Section 112 of the Indian Succession Act, 1925 states that a bequest to a person who does not exist at the time of the testator's death is void. This means that if the beneficiary named in the will is not alive or does not exist at the time of the testator's death, the bequest becomes void.
• Section 113 of the same Act states that a bequest is void if it is subject to a prior bequest but does not comprise the whole remaining interest. This means that if the bequest is conditional on a previous bequest, and it does not include all of the remaining assets or property, it is considered void.
• The rule against perpetuities, established under Section 114, states that vesting cannot be delayed beyond the lives of individuals in being at the testator's death plus 21 years. This rule ensures that bequests do not create indefinite or unreasonable delays in the distribution of property.
• Sections 115 and 116 of the Indian Succession Act, 1925 address how bequests should be interpreted when there are multiple beneficiaries. These sections provide guidelines to ensure that the intentions of the testator are honoured and that the bequests are distributed fairly among the beneficiaries.
• It is important to note that the wording used in a will is of utmost importance. The intentions of the testator must be clearly stated, and any ambiguities or uncertainties can lead to disputes and legal challenges. Clarity and precision in the language used are crucial to avoid misinterpretation and potential conflicts among heirs.
• While there is no legal requirement for registration, registering a will can add an extra layer of authenticity and reduce the potential for disputes. Both registered and unregistered wills are legally valid in India, provided they meet the other legal requirements.
• Finally, it is always recommended to seek professional guidance when drafting a will. An experienced lawyer can help navigate the complexities of Indian succession laws and tailor the will to specific needs, while also anticipating potential challenges.

Frequently asked questions