CAN WILL BE CHALLENGED OR NOT?

Introduction-

Death is a bitter truth, which is not faced by the person himself but is faced by his family. The second wave of Covid-19 resulted in unfathomable losses and deaths. Most of us witnessed life-or-death situations involving not only friends of friends, but also close friends and, in some really sad cases, family members. This physical loss also causes financial hardship and setbacks since, in the midst of their grief, dependents or those left behind must assess the deceased’s financial situation.

Aside from obtaining the documentation needed to ensure a smooth transfer of assets, the deceased’s financial trail must be closed in terms of accounts, investments, and insurance.

However, it is not necessarily the most effective way to pass assets to legal heirs because a will, whether registered or not, can not only be disputed in court by family members, but it is also an expensive, time-consuming, and inefficient means to settle family disputes. A family agreement, also known as a family settlement or arrangement, could be a useful solution to solve these problems.

So, here we have come with this brief article to acquaint you with relevant and frequently asked queries about the Will.

What is a Will?

Will denotes the legal declaration of a person’s purpose with respect to his property, which he wishes to take effect after his death, according to Section 2(h) of the Indian Succession Act, 1925.

It’s worth noting that a Hindu, Buddhist, Sikh, or Jain’s will is subject to the rules of the Indian Succession Act, 1925. Mohammedans, on the other hand, are not bound by the Indian Succession Act, 1925, and can dispose of their property according to Muslim Law.

Though Will registration is not required under Section 18(e) of the Indian Registration Act of 1908 but it is advisable to get Will registered.

Registration & Non-registration of a Will

In India, registration of documents is governed by the Registration Act, 1908. Section 18 of the Registration Act provides a list of documents for which registration is optional and Wills are covered by point e) of this Section 18. The relevant excerpt reads as follows:

“Registration of wills is not compulsory and depends on the choice of the testator. Usually, the testator will have to go to the office of the Regional Deputy Registrar to register their will. The will can only be withdrawn by the chancellor by the testator or his representative during his lifetime. On the death of the testator, the clerk may allow the applicant to take a copy of the will. However, the original of the will is always kept on deposit with the Chancellor. This ensures that the will is not tampered with after the testator’s death.

In the case of a registered will, all subsequent alterations or modifications must also be registered. Any alterations or modifications or explanations or cancellations not recorded are not accepted by the courts.

However, the testator can make a new will by revoking the registered will and declaring the provisions of the new will as his last will. Even if the new will is not registered (if it is later than the registered one), the new will prevail over the registered will.

Although the registration of a will is not compulsory, it can be registered with the Deputy Registrar. If at any time the testator wishes to withdraw his will, he can do so. Even a will can be sealed and kept in custody.

On the death of the testator, an executor or an heir of the deceased testator may apply for homologation. The court will ask the deceased’s other heirs if they have any objections to the will.

If there are no objections, the court will grant approval. A will is a copy of a will, certified by the court, and constitutes conclusive proof that the will is authentic.

Essentially, registration strengthens the will in some ways, although it does not set it in stone. Registration is recommended if there is the possibility that the will, will be contested by a natural heir (who is denied in the will what he would have inherited if the testator had died in his name). Registration is also recommended if one or more of the beneficiaries are likely to be dissatisfied with the will.

First of all, it must be remembered that the clerk or sub-registrar does not certify the will even if he can sign the will in the presence of the testator. If the will contains defects or lacunae due to errors or in the absence of a certificate, registration will in no way render the will valid.

Is there any eligibility criterion to make a will?

No, there is no such specific criterion for the person making the will. Anyone in their right mind, and not a minor, can make a will. If a person has a mental illness at the time the will is drafted, the will is not enforceable.

A will, obtained by force, coercion or undue influence, is a void will insofar as it takes away the free will of the person. A will, drawn up under the effect of drunkenness or in such a state of body or mind, sufficient to deprive the testator of free will, is null and void.

A will can be made at any time in a person’s life. There is no restriction on the number of times a will can be made by a testator. However, only the last will drawn up before his death is enforceable. A will must be executed by the testator, signing or affixing his fingerprint. It must be attested by at least two witnesses, each of whom must have seen the testator sign the will.

It should also be noted that ‘’Place of making a Will‘’ is of no importance. Indian courts give importance to the intentions of the testator.

Can Will be challenged in court of law

A will, although registered, can be challenged in court. The mere fact that a will has been registered will not in itself be enough to dispel all suspicion about it. A registered will may not be the last will. Even if it is not registered, if it is valid, will prevail over the registered will.
In the presence of suspect facts, the judge examines the will itself transcribed.

Sigma Legal’s advise on making a Will?

Here are the four reasons –

1. A will makes it easier for your family or friends to sort things out. When you die without a will, the process can be longer and more stressful.

2. If you don’t write a will, everything you own will be divided in a standard way defined by law, which is not always what you might want.

3. A will can help reduce the amount of inheritance tax that may be payable on the value of the property and the money you leave behind.

4. Making a will is especially important if you have children or another family that is financially dependent on you, or if you want to bequeath something to people outside your family.

The role of the Sigma in drafting and execution of a will

The role of the lawyer begins:

1. In case requested by a person to draw up a will in his name but according to his will and intention
2. In case requested to find out the authenticity of a will and search for any visible legal gaps
3. If it is necessary to file an application for succession on behalf of the client to contest a will.
4. It is safer for a will to be drawn up by a lawyer according to the will and intention of his client, especially when it is a very large amount.

For any clarifications/suggestions or any queries please write drop a comment or write to us at info@sigmalegal.in

VARTIKA JAIN

(LEGAL DEPARTMENT)

TEAM SIGMA LEGAL