How to Challenge a Will in India: Legal Grounds, Procedure, Evidence & Court Process

By NyayKart Legal Team - Experts in RERA, Consumer Disputes & Property Law Across India

This Article Written by Shweta Jadhav, Second Year B.A.LL.B from Lords Universal College of Law, Mumbai.

In India, contesting a will is a legally involved act, which is regulated by Indian Succession Act, 1925. One can only contest a will on certain legal grounds including; lack of testamentary capacity, undue influence, fraud, coercion, forgery or improper execution. The Indian courts will not intervene just because a will is not fair.

Introduction

A will is a final statement of the intention of a person about the disposition of his property in case of death. Testamentary freedom is observed in India, but freedom is not unconditional. The statute has realised that there might be situations when a will is invalid, improperly executed or acquired unfairly.

The Indian law allows a will to be disputed and only under certain legally accepted reasons. Courts treat these cases with care and guard against the possibilities of fraud, pressure or manipulation by giving appropriate consideration to the desires of the deceased and at the same time avoiding the unethical.

This Article explores the legal basis upon which a will can be contested, the process and the reality on the ground that parties need to consider before they can commence a legal proceeding.

Key Highlights: Challenging a Will in India

• An objection to a will may be objected to on legal recognised grounds only.

• The main phase of challenging a will is through probate.

• The onus of proving is originally on the propounder of the will.

• Wills which are registered may also be challenged.

• Unfairness is not sufficient in itself.

What is a Will in the Indian Law?

A will is a legal statement by an individual (the "testator") stating how his property should be given out after his death. It only comes into effect on the death of the testator and is normally executed by an executor nominated in the document.

Under the Indian Succession Act, 1925, the valid will should:

• Be executed by a sound minded individual;

• Be signed by the testator;

• Be witnessed by no less than two witnesses.

  
  

The non-observance of these requirements can make the will ineffective. Nevertheless, a will can be subject to substantive legal challenge even though a formal requirement seems to have been met.

Who can challenge a Will?

An objection to a will can only be made by an individual who has locus standi (i.e. a legal interest in the estate). This usually covers the legal heirs of the deceased, spouse, children, parents of the deceased, the beneficiaries of the will, the minors with their legal guardian, those whose livelihoods are dependent on the deceased and in some cases, the creditors as specified by the Indian succession act 1925.

Legal Grounds to Challenge a Will in India

A will cannot be contested because it appears to be unfair. Indian courts insist that there must be particular legal grounds-

1. Absence of Testamentary Capacity - The Testator must be of sound mind when he/she is making the will A will can be disputed when the testator was mentally ill, demented, severely impaired mentally or heavily medicated during the time of will execution. The question can also be raised whether or not the testator did not know what the document was and what its purpose was and whether the language and contents of the will seem inappropriate to the known intentions or understanding of the testator. The Supreme Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma (1959) indicated that the propounder of a will has to demonstrate that the testator had a sound disposing mind.

   
   

2. Undue Influence, Fraud or Coercion - In case the will was made under pressure, threat or manipulation, at the time when the will was created, it can be invalidated. It is up to the individual who needs to contest the validity of the will to prove. Wills that are acquired in a way that results in fraud, force or undue influence are declared invalid under section 61 of the Indian Succession Act.

   
   

3. Forgery - One of the challenges to a will is that the signature is forged, the pages were added or changed afterwards, the document was made, the testator was defrauded about the content.

   
   

4. Incorrect Execution - Although the will may appear valid, it may not work in case the procedural requirements were not observed. Being represented by a single witness, those who were not present during the test, the witnesses who did not observe the signature of the testator and the absence of the signature of the testator may be typical problems.

   
   

5. Suspicious Circumstances - The court may consider the will to be surrounded by suspicious circumstances that require further investigation, where the features of the testators are irregular, the date or place of execution have not been given or because of unusual surrounding circumstances. In KavitaKamra v. Pamela Mehta, It was considered that Pamela Mehta, in case the witnesses whose testimony is taken are unreliable or their words are inconsistent. This can be regarded as a suspicious situation. In Jaswant Kaur v. Amrit Kaur (1977) stated that suspicious circumstances should be clarified out to the last detail before probate is awarded.

Example: Challenging a Will in Practice

As an example, when an elderly testator is experiencing severe dementia and signs a will soon before his death, disinheriting all natural heirs and providing only one of the caregivers who actively participated in the process of the document preparation, the court can consider such a situation as suspicious. The proponent of the will, in such instances, has to present effective evidence to prove the mental competence of the testator and their volition.

Step-by-Step Procedure to Challenge a Will in India

The will challenging procedure is systematic and controlled by set rules and regulations on statutes and procedures. It is not an administrative objection but a civil court procedure.

Step 1: Determine the need to proceed through probate.

The initial and the most important thing to do when challenging a will is to find out whether probate processes are underway or by law. Probate is a legal qualification that is awarded by a qualified court to verify that the will is valid and authentic. It determines the right of the executor to manage the estate of the deceased.

The probate is required regarding wills made by the Hindus, the Buddhists, the Sikhs or the Jains in the territorial boundaries of the former towns of Presidency Mumbai, Chennai and Kolkata, with reference to immovable property located therein. In non-notified areas, probate is not always mandatory. But, the beneficiaries usually request probate to gain the clear legal title, and prevent the disputes in the future.

Strategically, the challenge to a will usually occurs at the point when:

• A petition of probate is entered in the District Court or the High Court or

• To claim the rights of ownership, a beneficiary tries to base on the will.

  
  

In this regard, prior to any challenge, one must ensure that before initiating it, they must verify:

• Whether a petition to probate has been already filed;

• The jurisdiction where it has been filed;

• The statutory notice whether given or not to legal heirs; and

• Whether concerns of limitation can take place.

  
  

In case probate proceedings are going on, the challenge has to be raised in the proceedings. In case no probate has been requested, the conflict can be encountered within the frame of another civil lawsuit concerning title or possession.

Step 2: Filing Caveat to Prevent Ex Parte Probate.

In case you feel that he/she will claim probate, you can submit a caveat in accordance with the provisions of 148A of the Civil Procedure Code.

The application of caveat in the case of the will dispute is an important strategic move. It ensures that:

• Probate is not referred ex parte (without giving notice to interested parties);

• The caveator has a chance to challenge the will;

• It makes the court aware that the testamentary document is challenged.

Documents Commonly Required to Challenge a Will

• Duplicated copy of impugned will.

• Death certificate of the testator.

• The medical records within the period of execution.

• Prior wills (if any)

• Evidence of relationship/legal interest.

• Nursing home/hospital records.

• Expert report in handwriting (where forgery is alleged.

  
  

When Should a Caveat Be Filed?

A caveat may be filed:

• On the death of the testator and probability of proceedings in probate; or

• Upon getting unofficial word that a beneficiary is planning on probate.

Timeliness is critical. When it is granted on probate without objection being taken, the procedure of setting aside the grant is procedurally more difficult. The caveat is usually valid to 90 days, unless renewed. In the litigation protection perspective, caveat filing is not just procedural in essence, it is a proactive protection in the sense that it does not waive the right to a challenge on the will.

Step 3: Objection and Conversion to a Contested Testamentary Suit.

The next substantive thing after a caveat has been filed or having been notified in probate proceedings is to file formal objections to the grant of probate.

Filing Written Objections

• The objector should submit a written statement in detail stating:

• The particular reasons on which the will is attacked;

• The material facts causing those grounds;

• The objection has a legal ground;

• The relaxation that was requested in the court.

  
  

In the same way, the lack of testamentary capacity should be proved by certain facts connected to the medical condition of the testator, the history of treatment or the evidence of behaviour as close to the date of execution, as it is possible. Other imprecise statements like the will is unfair or the distribution is unfair do not comprise valid legal grounds.

Once the objections have been filed, the probate proceeding is no longer a summary proceeding, but a contentious cause, which is treated as a normal civil suit.

After the case is made controversial, the will-propounder bears the initial burden of proving. One of the persons who attest it must usually be evidenced to and the original will ought to be shown in court.

Step 4: Evidence, Witness Examination and Trial Proceedings.

After objections are made and issues are framed the issue goes to the evidentiary level. Here, the case is a normal civil trial, which is ruled by the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872.

a)The punishment that befalls the Propounder is the burden of Proof.

The propounder should prove that the will was validly executed under Section 63 of Indian Succession Act that the testator was of sound disposing mind when the will was executed and the execution was not forced.

b) Investigation of Attesting Witnesses.

In Section 68 of the Indian Evidence Act, there must be one attesting witness who is examined to show the existence of execution, assuming that the witness is alive and can give evidence.

The witness is required to testify that:

• The witness had signed under seal; and

• The witness became the signatory to the will under the presence of the testator.

  
  

c) Objectoral Cross-Examination.

The objector is at liberty to question the witness of attestation and the propounder.

Cross-examination usually investigates:

• Whether the witnesses at the time;

• Whether the testator seemed mentally alert;

• Who did the will draft;

• Whether the beneficiary was present at the time of performance;

• The existence of previous wills of different terms;

• Whether there was any suspicious hurry with regard to execution.

  
  

  Irregularities or avoidance can go a long way in undermining the argument of the propounder.

d) Evidence led by the Objector.

In case the objector claims incapity, undue influence or fraud, he/she can provide:

• Medical record and interview of doctor;

• Sign of hospitalization or cognitive impairment;

• Opinions of handwriting experts (in forgeries);

• Witnesses of relatives or neighbors;

• Evidence of dominance or control by a beneficiary by circumstantial evidence.

In the cases where the suspicious circumstances are created, the evidentiary burden is practically increased on the propounder to overcome the suspicion.

Step 5: Final Arguments and Reservation of Judgment

Upon completion of evidence, the matter proceeds to final arguments. Both parties address the court on:

• Compliance with statutory requirements under the Indian Succession Act;

• Whether the burden of proof has been discharged;

• The existence (or absence) of suspicious circumstances;

• The credibility of witnesses examined during trial.

At this stage, legal principles laid down by the Supreme Court regarding testamentary proof assume central importance. The court evaluates whether the conscience of the court is satisfied as to the genuineness of the will.

After hearing arguments, the court reserves the matter for judgment.

Step 6: Pronouncement of Judgement

The court may either:

1. Grant probate - thereby affirming the validity of the will; or

2. Refuse probate- holding that the will has not been proved in accordance with law.

   
   

If probate is granted, the executor is legally authorized to administer the estate.

If probate is refused, the will becomes inoperative and the estate devolves either under a prior valid will (if any) or in accordance with intestate succession laws applicable to the deceased.

Step 7: Appeal Against the Decision

An aggrieved party may challenge the judgment before the appropriate appellate court.

Since probate proceedings are civil in nature, the right of appeal lies in accordance with the Code of Civil Procedure. The appellate court may:

• Reassess evidence,

• Examine errors of law,

• Confirm, modify or set aside the lower court’s judgment.

However, appellate courts generally refrain from interfering unless there is clear misappreciation of evidence or legal error.

Burden of Proof in Will Disputes

In testamentary proceedings, the initial burden of proof rests upon the person propounding the will. It is for the propounder to establish that the will was duly executed in accordance with Section 63 of the Indian Succession Act, that the testator possessed a sound disposing mind at the time of execution and that the document was executed voluntarily, free from coercion, fraud or undue influence.

Where suspicious circumstances are brought on record, such as the exclusion of natural heirs, the active involvement of a beneficiary in drafting the will, or execution under questionable conditions, the evidentiary burden becomes significantly heavier. In such cases, the propounder must dispel all legitimate suspicion and satisfy the judicial conscience as to the authenticity and genuineness of the testamentary document.

It is also important to note that the standard of proof in will disputes is that of preponderance of probabilities, as applicable to civil proceedings. The court does not require proof beyond reasonable doubt, but it must be reasonably satisfied that the will reflects the true and voluntary intention of the testator.

Will a Registered Will Be Contested?

Another false belief is that a will becomes incontrovertible when it is registered. This is not the juridical standpoint. Even though the registration can add more credibility to a testamentary document, it does not necessarily prove its validity.

Even a registered will can be contested on any of the following grounds: the testamentary capacity, undue influence, coercion, fraud or suspicious circumstances in which the will was made. The courts have always believed that registration enhances the evidencing value of a will yet does not disallow the judicial inquiry where grave suspicions exist.

Practical and Legal Before a Will is Challenged in Court.

It is not just a matter of law to challenge a will; it is also a move that is usually emotional and financially entailing. Testamentary disputes may take many years to resolve and often may cost an individual a lot of money with respect to legal expenses. They also have a habit of increasing the tensions in an already existing family and at times break down the relationship beyond repair.

The courts are cautious with such disputes and do not nullify wills due to the distribution not seeming equal or unexpected. To be successful in challenging, there must be credible documentary evidence and oral evidence of legal infirmity. Bringing a case without sufficient grounds can lead to rejection of the case and in some situations, it can even attract costs.

Based on this, any move to challenge a will must be done after a diligent consideration of the available facts, legal merits of the case at hand and the expedient consequences of protracted court proceedings.

Frequently Asked Questions (FAQs)

1. Is it possible to challenge a will upon the death of the testator?

Yes. A will does not come into effect until the death of the testator and is open to challenge by them in a probate process or by others seeking to invoke it as possession of an asset.

2. Is a time frame set to appeal to a will in India?

No specific time limit exists to make objection to the proceedings in probate courts. Delay can however undermine the case and cause negative assumptions.

3. Are there any laws on sibling contesting a will in India?

Yes, but a legal interest in the estate, that is, being natural heirs under the will, is necessary.

4. Does challenge; registration of a will?

No. Registration enhances the value of evidentiary nature but does not render the will impeccable.

5. Is it possible to contest a will without probate?

Yes. Cultures where probate is not compulsory The will can be contested in a civil suit on title or possession.

Conclusion

The law of testamentary freedom is acknowledged in the Indian law but on the other hand, to protect against fraud, coercion, and improper influence. A will can certainly be contested, but again something legally recognised and under a well-laid judicial procedure with predetermined procedure and evidence rules.

Finally, litigation does not concern fairness but it concerns legal validity. The work of the court is to determine whether the document under consideration really indicates the true intention of the deceased, and is free and conforms to the statutory requirements.

How NyayKart Can Help

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