1) after issue of notice you have to file affidavit opposing grant of probate

2) take the plea that will is forged

3) testamentary petition would be converted into testamentary suit

4) you don't have to file separate suit for cancellation of will

5) however you will have to file partition suit to claim your one fourth share in deceased father property

6) pay court fees as per market value of one fourth of the shares

1.In the same partition suit she can claim both partition and declaration of Will as null and void.

2. It is would be declaration and not cancellation. Declaratory suit is filed u/s34 of S RAct.

3.Court fee differs in every state. So check with your local lawyer.

4.Then apply for merger of both suit of probate and suit for partition.

The grant of a probate is conclusive evidence of the testamentary capacity of the person who made the Will.Once a probate is granted, no suit will lie for a declaration that the testator was of unsound mind.Normally you have one of the party in probate application,So file your counter affidavit and opposing grant of probate .

According to Indian Succession Act 1925, a person is said to have testamentary capacity only if he is in a sound disposing state of mind. It is essential that the testator should have sufficient capacity to comprehend perfectly the conditions of his property, his relations to the persons who were or should or might have been object of his bequest and the scope or the bearing of the provisions of his Will.

Important elements in testamentary capacity

• It is a voluntary act on the part of the testator

• Testator should have a sound disposing mind.

• Testator should know what he is doing by making a Will.

Testator should have sufficient capacity to know the extent of his/her property.

• Testator should be aware of potential beneficiaries.

• Testator should be aware of the consequences of his/her decision.

• Testator should be free from undue influence/fraud/coercion.

• Testator must know the contents of the Will.

A will irrespective of its registration can be challenged on the following grounds,

• Fraud

• Coercion

• Undue influence

• Suspicious nature

• Lack of due execution

• Lack of testamentary intention

• Lack of testamentary capacity

• Lack of knowledge and approval

• Forgery

• Revocation

Lack of due execution

A valid will has to be in writing, and signed by the testator in the presence of two witnesses, who must also attest the will. If the process is not followed to the hilt, the will can be challenged in the court of law.

Lack of testamentary intention

Here, the person has to prove that the testator had not intended to make a will. This plea is rarely used as it is difficult to prove.

Lack of testamentary capacity

A valid will requires that the decedent possessed "testamentary capacity," sometimes referred to as having a "sound mind," at the time the will was made. Law requires that people above 18 years can make a will. Adults are presumed to have a testamentary capacity. It can be challenged on the basis of senility, dementia, insanity, or the testator was under the influence of a substance, or in some other way lacked the mental capacity to form a will. Basically, to challenge a will based on mental capacity, you must show that the testator (the person who created the will) did not understand the consequences of making the will at the time of its creation.

Lack of knowledge or approval

Here you can take the ground that the testator did not, in fact, know what was in the will when he signed it.

Undue influence

A challenge of undue influence means the decedent did not make the will of free choice, but solely due to the improper influence of another person. A common situation that leads to such a challenge is where a lone sibling cares for an infirm parent, and the caregiver sibling receives a greater portion of the parent's estate than other siblings. This is particularly true if the parent has changed his will while under the care of the sibling and if this fact was kept secret from the other siblings. This usually involves someone manipulating a vulnerable person into leaving all or much of the property to the manipulator. The term "undue influence" merely means that the person lacked the free will to bargain because of the manipulator.

Fraud or forgery

A will can be challenged for fraud, such as when pages have been inserted after the decedent signed the will or the decedent's signature is forged. If the will was not executed properly, with only one witness signature when two are required, for example, the will can be challenged as invalid.The burden of proof would be on you to establish that the will was forged (not made by the testator) or was made as a result of fraudulent act.

So you don't have to file separate suit for cancellation of will .But in the case of getting share you should file a partition suit. You are eligible for getting 1/4th share of whole property of father in case the will is not proved by your brother.order11-rule12 is the section for production of document. Any party may, without filing any affidavit, apply to the court for an Order directing any other party to any suit to make discovery on oath of the documents which are or have been his possession or power, relating to any matter in question therein. On the hearing of such application the court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be thought fit:

Court Fee payable in a suit brought for the cancellation of a document is the Court Fee on the value of the property `for which' the document was executed. Ordinarily the expression `for which' occurring in that paragraph might have justified the interpretation that the amount on which the Curt Fee has to be paid is the amount specified in the document. So pay court fees as per market value of one fourth of the shares .

A will without a probation is nothing but fiasco and all the legal heirs have a right to oppose any probation. Therefore in my advise you should oppose the probation petition vehemently and if you have not been made the party then you should immediately file a petition for impleadment.

Regards

First of all your wife being one of the legal heirs of the deceased, has to file a partition suit seeking partition of all the properties of the deceased which are within her knowledge as on the present situation.

She may add other properties at a later stage when she discovers them then.

She can fight the partition suit separately ignoring the existence of a Will, because it is the burden of the opposite party to rely on the Will for denying your rights.

As far as the probate of will case, she can challenge the same separately on the basis of merits in her side and the facts she relies upon.

Don't mess up everything which may be fatal to your cases and you may end up losing entire things.

You can change the lawyer if this is not found to be effective in handling the case properly.