Only the testator/maker of will has power to cancel/amend the will. The testator being no more, will executed cannot be cancelled or amended.
Cancel new will and use old will
My Father wrote a will and registered that will on year 2001 to split his properties to me and my brother. We came to know about that will in 2012. My brother was not satisfied with the split and he forced my father to cancel that will and write a new will in 2012 itself. My father died in year 2019 and I was unaware of this new will until this year. There was a 3 acre land which was allocated equally to me and my brother in first will. So he forced my father to cancel that will and wrote a new will in which the entire 3 acre was assigned to him. But the real problem is that my brother couldn't own that 3 acres of land after my father's death as there was a problem in the second will. I didn't know the exact problem. My brother said that the re-survey number was wrong or something. So he came to me for a compromise and said he is willing to split based on the first will as he couldn't even own the 1.5 acres that was originally allocated to him in the first will. Otherwise all of our sisters need to sign to transfer that property to him. As there is a fair chance that my sisters would ask for a share. My brother came to me for a settlement. So, the question is – Can we cancel the new will and use the old will? The new will was split into 2 parts and is 2 separate documents. 1st document consist of a separate 30 cents land allocated to my name(the same has been allocated to me in 1st will as well) and 2nd part is that 3-acre land assigned to him(I hope so, he never shown that to me nor it was registered). He only gave me 1st document to me. I used that document 2 months back in village office to transfer that 30 cents land to my name. I asked about the other 3 acres mentioned in the first will and he didn’t give me a clear answer at that time. So the real question is can we cancel the 2nd part of the new will or the new will altogether and use to old will to split the property within us.
Asked 1 year ago in Property Law
Religion: Christian
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8 Answers
Since I was unaware of the new will until this year, can I challenge the new will? As I mentioned there were 2 documents in the new will. I have seen and used 1st document to transfer 30 cents in my name. I haven't seen the 2nd document and my brother is not ready to show that to me. I didn't know the contents in it. My father was sick and was in and out of hospital during the time when the new will was created. Can I challenge the new will on grounds of testator not in sound mind?
Asked 1 year ago
You can challenge it but you need to prove that the same was not voluntary
The new Will after cancellation of old Will shall only would be considered as valid and not the previous one.
Even the subsequent Will was not executed by a registered document, it is the only instrument that stands valid in the eyes of law and you cannot cancel the same at your whims.
If you have already recognized and enforced one part of the new Will, you do not have any reason or grounds to challenge the second part of the Will, because the reasons by which you desire to challenge the second part of the Will equally applies for the first part whereas you you already enforced the Will that is in your favor, hence your challenge shall become fatal to your own case.
New Will supersedes old will
you can enter into deed of family settlement among legal heirs for division of property among legal heirs
You can challenge new will n grounds that father was not mentally fit at time of execution of new will
1. As per your narration in the question, you have stated that there's some lacunae in the second WILL and based on that as well as your father was of unsound mind at the time of executing the WILL, you can challenge the latest WILL as of no legal validity and since the first WILL is legally valid, it can only be implemented.
2. Based on the above, both you and your brother can share equally your deceased father's property.
3. Registration of WILL is not compulsory but only optional. Even an unregistered WILL will have the same legal validity as that of a registered WILL.
- As per law, a Will can be written many times during the life time , but the last Will is valid .
- Further, registration of a Will is not mandatory , and it can be written on a paper as well in the presence of two witnesses.
- Since, your father has left a new bill , then the first one automatically got cancelled , and it has no legal value in the eye of law.
- Further , after the death of father , none having right to change or modify the Will on any ground , however it can be challenged before the court.
- Hence, you can file a Probate petition before the court for enforcing the first Will without mentioning the second Will .
