How to challenge second will that was prepared under influence
Subject:Place of case is Kota Rajasthan Youngest brother M influenced( under drugs and medicines )mother R and got a second will done cancelling the first will and depriving one brother from the property completely
The details are given as below.
1.My mother R(age at the time of will 86 years) made a Registered Will on 12/07/2011.She mentioned that this is first and last will.She made beneficiaries to her four sons including 2 grand sons (one grandson of deceased brother ).The names of the beneficiaries are S(son of K), P(grand son of deceased son H),D and M.
The property divided are one house in city given to three brothers or their son namely P,D and M and to S just a plot in a village in out skirts of Kota city.
Now Second Will was also made and registered cancelling the first will , on 10/04/2012.In this will she deprived of any property to D citing the grounds of misbehavior within a period of 8-9 months from first will to second will and dividing the house to P and M only.
Also village plot was divided in to two parts one to M and other to S.Actually son M kept hostage to mother R and under influence of drugs and medicines and threat. M got the new deed made and registered.
Mother R died on 28/08/2014.
It is interesting to note that son M has done all this to park all valuable portions in his name .This evident from the second will. M took 3 shops in house in city and took portion of the plot where the rental income from the mobile tower is available. It is also important to note that mother was a house wife and kota house was gifted by her father in law( my grand father) and plot in kota out skirts was purchased by my father in the name of my mother R
Since M did all this hiding to any one(still none of the brothers were conveyed to the second will) which will not be tolerated by any one and in a hurry did 3 major mistakes.
1.Ran away from the house because he felt that he will be questioned and scolded for all this by brothers.It is to be noted that the possession of the house is with D.The part on the plot where mobile tower is installed got a new agreement with the tower company which was challenged by S and rent has been stopped to M.S has also served a notice to tower company to vacate the plot citing the lease agreement for not transferring the rent to the old mothers account which is joint account of mother and S.
2.In just 9 months the period of two wills never cited a single reason for depriving the property to D .
3.In 2011 will there is a clear mention of division and demarcation of ground and first floor along with the architect map where in the second will made in 2012 there is only a mention of ground floor and clearly missing the mentioning of the first floor .
4. The second will has not been informed to any of the brothers because of the fear and backlash where as the first will was informed to all concerned by the eldest brother (me)
5. It is not out of the place to mention that the brother M who got all this done is a habitual drinker and because of this his wife remained away from him for ten years and also his daughter is not residing with him
Now the query is ;
How to implement the first will of 2011 and refrain from acting on the second will for an equitable distribution and also save the property.?
Dated at Mumbai 17/09/2015
Asked in Property Law from Greater Mumbai, Maharashtra
1) second will executed in 2012 would revoke the earlier will and testament made by mother in 2011
2) if second will has not been communicated by your younger brother to other siblings apply for probate of earlier will
3) notice would be issued to all legal heirs
4) if your younger brother has subsequent will he would oppose grant of probate and will have to apply for probate of second will
5) the testamentary petition would be converted into suit and will had to be proved
6) you can dispute second will on account of suspicious circumstances surrounding second will
7) the fact that all properties have been bequeathed to 2 brothers in exclusion of others Is suspicious circumstances surrounding the will
8) you can cross examine the attesting witnesses whether will was signed in their presence
9) if you are able to prove that will was executed under coercion under influence of drugs the court won't grant probate of second will
1. The beneficiaries of the first will, whose rights have been truncated or extinguished by the operation of the second will, can challenge the second will in the court on the ground that it was not executed by the deceased with her free consent.
2. Those who challenge the will as being vitiated by absence of free consent are under a heavy obligation of law to produce the required degree of evidence to impeach the will. Normally such use of force is, in the absence of direct evidence, difficult to prove in the court, but this is not a case iron rule which must apply to all cases.
3. Once the second will is struck down as illegal by the court the first will would regain its legal character and force.
The legal fact is that any will executed subsequent to the previous will, the latest will shall be considered legally valid will until the present one has not been superseded by another will. In your case the subsequent will contains recitals stating that the previous will stands cancelled therefore the second will can be held legally valid.
The contents in the previous will and present will cannot be a matter of debate when the previous will is not valid under law due to the existence of subsequent will by the same testator.
However, being an aggrieved person, you file a partition suit seeking your respective share as per the bequest made in the previous will pretending to be not in the knowledge about the 2nd will at all, let the defendant produce the 2nd will which can be challenged accordingly as it becomes his duty to obtain probate by a competent court to enforce the said will.
Consult your lawyer on all such further issues.
1. If the 2nd will can be proved before the Court to be invalid on the ground that it was executed and registered by the executant being influenced/coerced by the beneficiary, the it will be declared as invalid and the registration will be directed to be cancelled,
2. In the above event the 1st will shall be treated as the last will of the executant,
3. However, if the beneficiary of the 2nd will applies for probate, you will get notice for it when you can contest the will on the grounds mentioned in your above query.