• Will validity and witness attestation

My late father made a will in oct 2011 and registered the same. In this will my wife (spouse of benificary)has signed as one of witnesses as asked by
my father . In Nov 2011 my father cancelled the same will (his will of oct 2011) and register this cancelled will. In this cancelled will my youngest brother (who was a benificary in the father will of oct 2011) signed as one of Witnesses as asked by my father . In June 2013 my fatherexpired . As I come to know that benificery or his any spouse are not eligible to sign as witness in will. 
Some one is also telling that if any benificery or his spouse signed on will as witness then his share mentioned in will shall be forfeited or void. Please clarify what will be the legal status of this will whether valid or cancelled and how the court will deal in this situation if opposite party raise this issue and ask the court to forfite/ void the share of beneficiry mentioned in the will on the basis of signing will as one of the witnesses I. e spouse(wife) of benificery. 
The signing on will as witness by my wife (benificery, s spouse)On the made will of father of oct 2011 done unknowingly not knowing law and only done as per her father in law (my father) wish similarly in the same way my youngest brother (one of benificery of father oct 2011 will) signed as one of witnesses on cancellation will of nov 2011.
Now what will be the legal status of my late father will of dated oct 2011.
whether legally valid or legally cancelled. 
 Further the share of benificery (eldest son) who is also one of the class 1 legal hairs, can be forfitied or void of his share due to just his spouse (wife) has signed on the will as one of witnesses, who has signed unknowingly not knowing law as most of the common people and signed as per wish of her father in law (my father) the Testator. Further would it not be against the wishes of the deceased who has given a share of his property in his will. P

Please clarify. Further how can i get my legal share of property being class 1 legal hair. I want to sell my share. We are hindu family and property is in distt- moradabad, U. P.
Asked 1 month ago in Property Law
Religion: Hindu

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20 Answers

Dear client, 

this will is not valid. You can claim partition if it is an ancestral property or succession for the property being the legal heir. 

Thank you

Anik Miu
Advocate, Bangalore
3311 Answers
34 Consultations

4.9 on 5.0

The property belonged to your father. He first gave it to you  through a will and then cancelled the will. Both the documents are valid unless they are challenged by you or your brother.

There cannot be any problem wrt your share as you are stating. There is no law like that.

Rahul Mishra
Advocate, Lucknow
13335 Answers
49 Consultations

5.0 on 5.0

1) there is no bar to spouse of beneficiary signing as witness 

 

it does not result in forfeiture of his share 

 

3) father was at liberty to revoke his earlier will of October 2011 

 

4) if there is no will property would devolve on your mother ,you and your siblings equally 

Ajay Sethi
Advocate, Mumbai
85546 Answers
5730 Consultations

5.0 on 5.0

As your father had written a Will and cancelled it later, with both the Will and the subsequent cancellation deed having been duly registered, his death shall be deemed to be intestate. His estate shall devolve upon all his Class-I legal heirs equally. 

Swaminathan Neelakantan
Advocate, Coimbatore
1498 Answers
17 Consultations

4.9 on 5.0

You can get the said will probated through court and get your share. If anyone is disputing from the other legal heirs side then it will be converted into testamentary suit

Prashant Nayak
Advocate, Mumbai
25386 Answers
65 Consultations

4.4 on 5.0

1. Yes

2. Yes. Both needs to registered. Cancellation is mandatory to be registered

3. If it's cancelled legally then no will. 

Prashant Nayak
Advocate, Mumbai
25386 Answers
65 Consultations

4.4 on 5.0

1) will is not valid as wife of beneficiary has attested the will 

 

2) there is no will in existence as faher has revoked his will 

 

3) property would devolve among legal heirs equally 

Ajay Sethi
Advocate, Mumbai
85546 Answers
5730 Consultations

5.0 on 5.0

Your father's Will stands cancelled as on date, no matter who signed as witness to the Will and to the cancellation deed. His estate devolves upon all his Class-I heirs equally.

Swaminathan Neelakantan
Advocate, Coimbatore
1498 Answers
17 Consultations

4.9 on 5.0

Basically the Will was cancelled by the testator himself by executing a cancellation deed cancelling the Will and he  has not made any Will subsequently.

Hence your father can be considered to have died intestate.

The Will once cancelled is not valid in law and cannot be enforced by the beneficiaries. 

Therefore there is no question of whether the spouse of beneficiary signed as witness in the Will or a beneficiary has signed as witness in the cancelled Will. 

You, as one of the legal heirs to your deceased father is entitled to a share in the properties left behind by him at par with other legal heirs.

T Kalaiselvan
Advocate, Vellore
75676 Answers
1313 Consultations

5.0 on 5.0

You can revert with more queries whenever you find one.

 

T Kalaiselvan
Advocate, Vellore
75676 Answers
1313 Consultations

5.0 on 5.0

1. There is no legal infirmity in the spouse of the beneficiary signing the Will as an attesting Witness.  You may please note that it is an attesting witness alone hence has nothing to do with the beneficiary.

2. The Will can be cancelled by the Testator only and not the witness.

Your brother might be a beneficiary in the original Will however he is not restricted in signing as an attesting witness in the cancellation of the Will.. It is very much within legal frame.

3. Your understanding is right. Now the properties left behind by your deceased father is intestate inheritance. 

T Kalaiselvan
Advocate, Vellore
75676 Answers
1313 Consultations

5.0 on 5.0

Dear client, 

it is not legally valid so cancelling it is the only option. Thirdly, yes you can do that and it is valid. 

Thank you

Anik Miu
Advocate, Bangalore
3311 Answers
34 Consultations

4.9 on 5.0

Will has been revoked by father during his lifetime 

 

2) since there is no will property would devolve on legal heirs as father died intestate 

 

3) it is immaterial whether will has been attested by beneficiary or his spouse as it has been revoked 

Ajay Sethi
Advocate, Mumbai
85546 Answers
5730 Consultations

5.0 on 5.0

Only the appointment of attesting witness can turn to be void at the most under 67 of IS Act

Prashant Nayak
Advocate, Mumbai
25386 Answers
65 Consultations

4.4 on 5.0

A Will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting or the wife or husband of such person or any person claiming under either of them. Explanation.—A legatee under a Will does not lose his legacy by attesting a codicil which confirms the Will.

 

From the above explanation it can be seen that the Will is invalid however the bequest shall be void so fr as concerns the person so attesting if he or she is a beneficiary.

In the case of Hindus, though a witness can be a beneficiary, however, it is
advisable that a will should not be witnessed by a beneficiary. The courts have
held that where the beneficiary has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that in itself is one of the suspicious circumstances.

 

Once the Will has been cancelled by the testator, where is the question of enforcing the Will, and if it not enforceable then how the Will can be objected in the court?

The cancelled Will cannot be presented before court for probate or even for debate.  

T Kalaiselvan
Advocate, Vellore
75676 Answers
1313 Consultations

5.0 on 5.0

All queries replied to 

Ajay Sethi
Advocate, Mumbai
85546 Answers
5730 Consultations

5.0 on 5.0

As advised earlier, your father's Will which was cancelled by him during his lifetime has no existence as on date legally. When it is non-existent, no one can challenge anyone's share on the basis of either execution or cancellation of the Will. Your father's estate has to be shared equally by all his Class-I legal heirs.

Swaminathan Neelakantan
Advocate, Coimbatore
1498 Answers
17 Consultations

4.9 on 5.0

Dear client, 

the court can declare it as void then. Yes, the statement of the opposite party can be countered.

Thank you 

Anik Miu
Advocate, Bangalore
3311 Answers
34 Consultations

4.9 on 5.0

    

Anik Miu
Advocate, Bangalore
3311 Answers
34 Consultations

4.9 on 5.0

- As per law, a WILL can be written repeated number of times during the life , and only the last WILL is valid 

Since the said WILL was cancelled by father then after his death there is no WILL and now the property would be devolved upon all the legal heirs equally. 

Mohammed Shahzad
Advocate, Delhi
8791 Answers
94 Consultations

5.0 on 5.0

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