• Will cancelled during unsound time

Dear Sirs/Madam,

My father wrote a WILL in 2010 when he was 70 years old for a property in my name. He had a mistress (second wife he calls) as the marriage is VOID since he married that woman in court when my mother was alive. After my mothers death, this woman has influenced my father to cancel the WILL so that she can obtain that property share to her and her children. In 2018 he cancelled the WILL with her influence and he died last years in December 2022. This I came to know only after his death when I opened his cupboard to find this WILL. How can I fight this in court or through a lawyer that when he was in sound mind, he wrote the WILL and then this woman influenced after my mothers death to cancel that WILL, At present there is no WILL. She has 2 children through my father and we do not even know that they are born to my father as he was blackmailed for the first child, and then for the second child he himself suspected her that it was not his. As, she has been with many other men before she met my father and she has had affairs after my father also. She was young when my father was double her age. How can we go about this kind of case? Also, he met with an accident and he went into COMA. I paid 80% of the hospital bills and they only paid 20% and they have filed the FIR and I was not in the country when this happened. Now, they are not letting me know anything about the FIR and whether they got the money or not and their motive is to go behind all the property that originally belonged to me. I appreciate your kind help and answers for such kind of situation. Thank you again,
Asked 1 year ago in Property Law
Religion: Christian

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8 Answers

Father is at liberty to revoke the will during his lifetime 

 

2) on his demise you and children from his mistress would be legal heirs having equal share in property 

 

3) you can insist on DNA test as to whether they are your siblings or not 

 

4) since your father died intestate apply for letter of administration from high court or district court having jurisdiction 

Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

5.0 on 5.0

If there is no will the same will be shared equally all his legal heirs including you

you can challenge the same by filing a suit but proving the same in court needs evidence of his unsound mind. But same will not serve any purpose as the position will come to square one that is no will

Prashant Nayak
Advocate, Mumbai
32146 Answers
184 Consultations

4.1 on 5.0

If the Will was cancelled by your father during his lifetime, and he had not made any arrangement towards his properties then he is reported to have died intestate.

You and other legal heirs are entitled to get an rightful share in the properties left behind by as per the personal law i.e., Indian succession act.

Even though  it is not mandatory to obtain probate of Will, moreover the Will is reportedly cancelled, under the provisions of  Sec. 212 of the Indian succession act, to establish right in a court as to any property of a person (other than Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi) who has died intestate, letters of administration should be produced.

If you suspect that the children are not born to your deceased father, you can challenge their paternity by filing an application for DNA tst to confirm their paternity.

 

T Kalaiselvan
Advocate, Vellore
85369 Answers
2231 Consultations

5.0 on 5.0

 

File a suit in civil Court seeking declaration of will executed 2010 as valid and cancellation in 2018 as invalid taking following steps.

  1. Establish with documentary proof that, the second woman is not his wife.
  2. Establish her character in Court.
  3. If you are sure that he has not fathered her sons, seek DNA testing, it can be done taking sample from you. If this is proved, she or her sons will not get any property.
  4. Will executed when he was 70 and cancelled when he was 78. This is proof that, she coerced her as he was vulnerable in advanced age.
  5. Claim that will is cancelled due undue influence and coercion by her.
  6. Ask her to produce medical record of his mental and physical fitness in 2018.
  7. Check if the cancellation is attested by competent witnesses. There should be two adult, respectable and disinterested witnesses for cancellation of will. 
  8. There are many other points on which you can get the cancellation invalidated.

Ravi Shinde
Advocate, Hyderabad
4074 Answers
42 Consultations

5.0 on 5.0

I'm sorry to hear about your situation. Given the complex nature of your case, it is highly recommended that you consult with a local lawyer who specializes in wills and estates to assist you.

 

If your father was in sound mind when he made the will in 2010, it would be a legally binding document, assuming that all the legal formalities were followed at the time of its creation. If the will was cancelled with undue influence or coercion from the mistress, there may be grounds for challenging the cancellation in court. However, this would require evidence that your father was coerced, manipulated or forced to revoke the will.

 

Regarding the accident, you should also consult with a lawyer to understand the legal implications of the FIR and any claims that may be made against your property. A lawyer can help you navigate the legal process, and represent your interests to ensure that your rights are protected.

 

In general, it is important to act quickly in situations like this to ensure that your legal rights are protected. A local lawyer can help you understand your options and formulate a strategy to address your concerns.

 

 

 

Anik Miu
Advocate, Bangalore
9169 Answers
111 Consultations

4.7 on 5.0

so there is a 2010 Will

and in 2018 that 2010 Will got cancelled. I assume that there was some document made by your father to cancel the 2010 Will

despite the subsequent cancellation, you can still put the 2010 Will to proof by filing a petition for grant of letters of administration with Will annexed

the legal heirs of your father will have to be cited/notified about the above LA petition

since the second wife had married during the subsistence of the 1st marriage, the second wife is not required to be notified

however her children who are the legal heirs of your father have to be notified

they will obviously object to your petition by putting up the 2018 cancellation as a defense

upon that happening the petition will be converted into a testamentary suit and the court will then decide whether or not to grant the LA to you

you will have to discharge the burden of proof that the 2010 Will is a valid Will and was made as per law whereas your objectors will have to prove their case that the 2010 Will was duly and properly cancelled by the testator in 2018

All of the above will require a trial in which both the parties will have to lead their respective evidences and witnesses

so the ball will be in the Court's hands and it will pass a judgment accordingly 

Yusuf Rampurawala
Advocate, Mumbai
7553 Answers
79 Consultations

5.0 on 5.0

The second Will can be challenged only on the grounds that your father was not of sound mind or was under severe mental duress or was subject to physical threat at the time of his executing the Will. These facts if alleged have to be proved by you based on documentary evidence and witnesses to the satisfaction of the court to set side the Will.

Swaminathan Neelakantan
Advocate, Coimbatore
2836 Answers
20 Consultations

4.9 on 5.0

As you said, court marriage was during the life time of your mother. Marriage is not valid. She has no claim.

Since there is no WILL in her favor, you himself is the only successors of his properties due to intestate succession and death compensation if any award by the motor accident tribunal.

FIR status can be obtained. No big deal.

Parenthood of the child can be proved by doing DNA test by the order of court.

 

Yogendra Singh Rajawat
Advocate, Jaipur
22704 Answers
31 Consultations

4.4 on 5.0

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