• Challenge a will

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 2 years ago in Family Law from Noida, Uttar Pradesh
Religion: Hindu
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.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
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
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
5.0 on 5.0
Hello,
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.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
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.
H. S. Thukral
Advocate, New Delhi
519 Answers
125 Consultations
5.0 on 5.0
Hi,
 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.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
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.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
5.0 on 5.0
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 .
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
5.0 on 5.0
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.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
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.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
5.0 on 5.0
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.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Family Lawyers

T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5231 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
438 Answers
15 Consultations
4.7 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2760 Answers
41 Consultations
4.9 on 5.0
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0