Challenging the Validity of a Will

The two types of succession in the Indian Succession Act, 1925 (the Act) are intestate succession and testamentary succession. If there exists a Will then, it is testamentary succession. While in intestate succession there is no Will and the deceased's properties are distributed as per the laws of their respective religion. The Act applies to the wills which are made by Christians, Hindus, Sikhs, Buddhists, and Jains. The rules of succession which are applicable to the Muslims are not governed by this Act. The Act also includes comprehensive provisions detailing how a Will is to be made, its validity, grounds of challenge, etc.

What is a Will?

A “Will” refers to the legal declaration of the testator’s intention concerning their property which they desire to be carried into effect after their death. ¹It is considered a legal declaration made by the person in respect of their property. All the information relating to the property of the deceased and the effects which will take place after their death is mentioned in the Will. The Will comes into effect only after the maker of the Will has died.

The person that makes the Will is known as the ‘testator’ and the person that executes the will is called the ‘executor’. An executor is a person or entity that distributes the assets and is also known as the testator's legal representative. The executor can be named in the will itself or it can be an implied person or institution. Only a person that has attained the age of 18 and is of sound mind can be an executor of the Will. A Will can be altered and revoked by the testator at any point during their lifetime. A Will can be registered² though it is not mandatory.

A Will generally contains the following:

1. The details of the testator
2. Testator's intention
3. Details of the property and its distribution
4. Details of the beneficiaries
5. Details of the executor of a will
6. Signature of the testator

Who can challenge a Will?

Nothing is explicitly mentioned, as to who can challenge a Will in the Indian Succession Act, 1925, but grounds on which a Will can be challenged are mentioned. The court can, on a case-to-case basis, interpret who may challenge a Will. Below mentioned are the three most common challengers of a Will:

1. Minor
   If the minor has an interest in the will, the guardian of the minor can contest it. Given that the minor cannot directly contest the Will because they have not attained the age of majority yet, the guardian may do so on the child's behalf.
2. Beneficiaries
   The Will may also be challenged by those designated as beneficiaries in the Will. In most cases, the names of the beneficiaries are specified in the Will. If there is no mention of the recipient, various provisions of the Indian Succession Act, of 1925 provide clarification.
3. Heirs
   The people who inherit the property following the death of the will’s maker are known as heirs, who are the primary beneficiaries. They are entitled to inheritance even in cases when wills are not executed. The term "heirs" includes grandparents, parents, siblings, spouses, and offspring. The heirs may contest the will if they are left out of it or do not receive their rightful amount.

Grounds of Challenging a Will

A will can be challenged on the following grounds in India:

1. Undue Influence, Fraud, and Coercion
   A Will is considered void if any kind of fraud, undue influence, or coercion is used³ at the time of its making.The burden of proof is on the person challenging the validity of the will. In RM. AK. P. KannammalAchi and Ors. v/s A.N. Narayanan Chettiar,⁴ it was observed that if there are grounds for undue influence, coercion, or fraud in making the will, then the will can be challenged.
2. Lack of testamentary intention
   When the language of the Will does not match with that of the testator and is uncertain then the validity of the will can be challenged.⁵ The will can also be challenged if it does not represent the testator's wishes.⁶
3. Lack of due execution
   A valid Will carries the signature of two witnesses as well as the testator’s signature along with their thumbprints, in the testator’s presence and by the testator’s wish. ⁷The absence of any of these elements can be cites to challenge a will.⁸
4. Forgery
   If the Will is found to be forged by any means then it can be challenged and the responsible person can be punished for forgery. The burden of proof to establish forgery⁹ will be on the person challenging the will's validity.
5. Revocation
   The testator can alter or revoke the will as many times as they want in their lifetime without limitation.¹⁰ In case of revocation, the Will is destroyed and a new Will is made whereby the prior Will is no longer considered to be valid. It is essential to note that all revocations and/or alterations should be void of coercion, undue influence and fraud. Only those portions of the Will can be challenged which are found to be inconsistent.
6. Lack of testamentary capacity
   If the testator does not possess a testamentary capacity at the time of making the will, the will can be considered void and can be challenged. ¹¹The will’s validity can be challenged if at the time of making the will, the testator:
   1. Has not attained the age of 18 years
   2. Is of unsound mind, dumb, blind, or deaf and is not aware of the situation as well as the consequences making the will
   3. Was intoxicated
   4. Was unwell with illness affecting their decisions (for example, dementia)
7. The nature of the will is suspicious
   If the signatures or thumbprints are not done as per the requirements, the date and place of will's execution are not mentioned, or other required requirements are not fulfilled, then these circumstances can be considered suspicious and the validity of the will can be challenged before the court. In Indu Bala Bose and Ors v/s Manindra Chandra Bose and Ors,¹² it was stated that the genuineness of the testator's sign, the mental condition of the testator, if an unnatural disposition is made in the Will, or if the Will is unfair with the existence of valid circumstance all these all can be included in the suspicious circumstance to challenge the validity of the will. In KavitaKamra v/s Pamela Mehta,¹³ it was held that if the witnesses attested are unreliable, or their statements are contradictory. it can be considered a suspicious circumstance.
8. Lack of approval or knowledge
   In the case of H VenkatachalaIyengar v/s BN Thimmajamma, ¹⁴it was held that if the nature and disposition effects are not understood by the testator then the will cannot be executed. If the testator is not aware that he/she has signed the Will then in that case the validity of the will can be challenged. At the time of signing the will, the testator should be aware of all the information that is included in the Will, if that is not the case the Will is eligible to be challenged. ¹⁵If some of the terms in the Will are added which are only beneficial to one person and the testator does not have knowledge of the same, the Will’s validity can be challenged.

Conclusion

A Will can be challenged by an individual that has some interest in the Will. The burden of proof is on the person that challenges the Will’s validity. Some common grounds for challenging a Will are mentioned in the Act, however these grounds are not exhaustive. The reasons for challenging a Will can differ from case to case basis. In many circumstances people oppose the validity of a Will for their personal benefits. To prevent such false cases that waste the court’s time; rules and regulations specifically on the false challenging of Wills can be introduced in India. This will prevent false cases and provide clarity to common people.

Article is authored by Shreya Patel, B.A.LL.B (Hons)