Mother made a WILL in May07.Three months later,in Aug 07, she wrote a Declaration that any WILL or WISH made by her before the present date be treated null n void.She mentioned the names of her Children ,and that they were her only legal heirs.(She had felt that her WILL was unjust n made under coercion).Mother expired in Mar 08.WILL of May 07 has been submitted to a Testamentary court of the High court for Probate.Can the WILL be challenged for delay/revokation/ ?Does the Declaration revoke the WILL?Will she be considered dead intestate,although in the Declaration she does explicitly mention her children' names as legal heirs ?
Asked in Family Law from Noida, Uttar Pradesh
1. Who is the beneficiary of the first will? Have the other legal heirs objected to the grant of probate to the first will? It is not clear from your query as to what is the legal nature of the subsequent document which you have termed as ''declaration''. However, the subsequent document may be interpreted as a will. What is the manner laid down for distribution of property in the subsequent will?
2. The subsequent will of your mother supersedes her earlier will. It is the subsequent declaration which will prevail over the earlier one.
3. The beneficiaries of the subsequent will can object to probate petition and produce the subsequent will in the court to.
4. She cannot be considered dead intestate.
1) first will of May 2007 made by your mother stands revoked by subsequent will /declaration made in August 2007
2) if will made in May 2007 has been submitted for probate you should file you reply opposing grant of probate on grounds that it stands revoked by subsequent will
3) you can apply for probate of will made in August 2007
4) it cannot be said that your mother died intestate . the declaration made in August 207 will operate as her last will and testament provided it is signed by her and attested in presence of 2 witnesses
1)A Will is a document in testamentary nature that declares the wishes and desire of a person while he or she is alive as to whom and in what manner should her assets be distributed and shared after his or her death. As such the document becomes valid and relevant after the passing away of the testator.
2) The person during his/her life time is capable of cancelling or adding to the will already made.There is usually a clear wording that states that "If there is any will and codicils(addition to will) shall be superseded by the subsequent will.
3) Therefore if your mother had made a will in August declaring the heirs and nullifying the Will in May of 07, you can certainly challenge the will that has been submitted for probate, regardless of the fact who the beneficiaries are.
4) It will never be considered that your mother died intestate as she had made a subsequent will replacing the one that she made in the month of May and for all practical purposes the last of the Testamentary document will be treated as the valid one as aforementioned.
5) There is no specific format that is set out for the writing of the will . As such if your mother made the 'Declaration' in soundness of mind and body, without coercion and before two witnesses it will treated a valid Will.
6) In your case you can besides challenging the will that has been submitted for probate, proceed with probating the authentic Will of August of 2007.
Under section 70 of the Indian Succession Act if the will is to be revoked in writing then the said writing should be executed in the manner in which an unprivileged will requires to be executed as contemplated under Section 63 of the Act. When once a Will is duly proved to have been executed, the person who sets up the plea that such a Will is revoked by another deed, or will has to prove due execution of the said deed in the same manner in which due execution of the Will has to be proved. If the subsequent deed is executed like a will then earlier will is revoked automatically.
Advocate, New Delhi
you should challenge the probate of the WILL by objecting it with the genuineness of the declaration made by her.
However it depend on the the declaration of revoking the previous WILL through another deed as it could be another WILL, means just making another declaration would not invalidate the previous WILL. If not executed so the first WILL is the last testament, however ,if her declaration has a clause that she was coerced to do so, the genuineness of the WILL can be challenged.
1. Was the declaration executed by her in presence of witnesses?
2. If yes, then you can certainly challenge the probate application of the Will of May'07 with the subsequesnt declaration in Aug'07 if the said decration was executed before witnesses,
3. The declaration made in Aug'07 is not a Will but a declaration cancelling her Will of May'07. Her mentioning the names of her legal heirs can not be called as a Will,
4. She will be treated as died intestate.
!.WILL of May 07 divides Mother's immovable assets in a manner that brother B, who resided at parental house with her for years,is the major beneficiary.Mother realised this unjust division soon, as it hurt her.
2.She did narrate that she had signed some document which her late husband would not have approved n that she was coerced into signinig.She then called up the eldest brother A and youngest brother D, and asked them to help her make amendments or cancel the previous doc.She didn't recollect the subject as WILL.Brother B would not divulge details of the document nor would he confirm whereabouts of the same.
3Now,Mr B has suddenly filed the WILL for probate,with no info to other brothers.Four months later,that the court notice to brother A ,brought the matter to fore.Brothers C & D reside abroad and they have no knowledge of this.(
5.The Declaration clealy states that any WILL or WISH signed earlier to this date be considered ineffective and null n void.Further ,lists the four brothers by name,as the only legal heirs.
Can we file the objection anytime now,or do we wait for the date of hearing for Probate?Does the objection statement hve to be on a stamped paper,like an affidavit ? Do all three brothers have to file objection simultaneously and/or can we seek date extension ??How do the two brothers send their objection from abroad ?
Asked 2 years ago
1) you have not mentioned whether declaration has been signed in presence of 2 witnesses or not . if declaration has to operate as will it needs signature of testator ie your mother and it has to be attested by 2 witnesses
2) once notice has been give to other 3 brothers they can appoint an advocate who will file an an affidavit opposing grant of probate and enclose copy of said declaration . . it operates as written statement
3) probate petition will converted into testamentary suit .
4) the affidavit prepared by lawyer can be sent abroad for their signature . the brothers must sign and attest the affidavit before indian consulate
5) engage a local lawyer .
1. For the subsequent declaration to qualify as a will it should bear the signature of your mother and two witnesses to attest the signature of your mother. If these quintessential conditions are fulfilled the subsequent will overrides the earlier will.
2. Since B has filed for probate of the earlier will which was subsequently cancelled by the mother, you may file your objections supported by an attested affidavit in the court on the next date of the hearing to oppose the grant of probate.
3. The objection need not be on a stamp paper.
4. Brothers C and D who reside abroad can be sent a hard copy of the objections and thereafter they shall get it attested before the Indian Consulate and post it back to their lawyer in India.
1. You have not mentioned clearly who had written the said declaration and whether she has signed the declaration or not. You have also not mentioned whether any body has signed the said declaration as witness or not,
2. If she has not signed the said declaration in presence of two independent witnesses then it will hardly have any legal value,
3. Even if she has signed it intresence of two witnesses, it is not a fresh will but can be argued to be a declaration cancelling her will,
4. All the remaining legal heirs of the testator can file written objection challenging the said probate application and in that event the said probate application will be converted to testamentary suit wherein the the validity of the said declaration will be challenged by 'B',
5. The Written Objectiojn shall have to be signed by all other brothers including those who stay abroad and in those cases the documents shall have to be signed before the Indian Consulate to be vetted by its authorised officer.
A will is a legal declaration by which a person, the testator, names one or more
persons to manage his estate and provides for the transfer of his property at
death. WILL is an untitled document which state after the death of a person making the deposition an it is document which can be revoked , modify or substituted by the person executing the will at any point of his time during his life time.
There is no statutory time limit for claims to challenge a Will. However, in the event of inexcusable delay, a substantial lapse of time with knowledge of the potential claim, or acceptance of a benefit given under a Will, the Court could conclude that the claim should not be allowed to proceed.
Declaration for your mother shows her unwillingness about the will executed in May 2007.But check whether the declaration done by her is sustainable in the eye of law and procedure.