A Will is a declaration of a person on a document regarding the distribution of his assets after his death. Will is a legal document but there is no prescribed form of it as it can be handwritten or typed on any document and not just the stamp paper. A Will may be revoked or altered by the owner at any time prior to his/ her death.
It is very important to draft a will which is complete in itself, leaving no loopholes for any sort of dispute. But most of the time while drafting a will some or the either point of dispute is left. We at Sabkuch legal deal with all the disputes related to will and make it easy for the parties to resolve those disputes and receive their rightful portion f the moveable or immoveable property.
If a person dies without making a will, he is said to have died ‘intestate’, in which case Indian Succession law 1925, will apply based on your religion. Probate is granted by a court, certifying the validity of the will. Obtaining a probate is compulsory to execute the will of the testator.
There are situations where the testator is willing to give his property to someone who is not very close to them by blood or by matrimonial relation, nonetheless, they share a close sentimental relation. A will can be challenged in the court of law when it does not appear natural. If the bequest made in the will appears to be unnatural, then the court has to scrutinize the evidence with more care than usual. Hence, a will can be challenged in the court of law when it does not appear natural. The burden of proving the presence of undue influence is on the party alleging the. Therefore, the person on whose name testator has made the will need not prove or disapprove anything. The person, making the claims of undue influence needs to prove that the intention of the testator was obtained using undue influence.
Will can be Challenged in the Following Ways
(i) Presence of Coercion, fraud or undue influence
(ii) Presence of a suspicion nature
(iii) Absence of testamentary intention or capacity
(iv) Absence of testamentary intention or capacity
(v) Absence of Knowledge
Procedure for Challenging Will
(i) Filing a suit in a valid Court
(ii) Issue Vakalatnama
(iii) Initiate proceedings file WS
(iv) Present documents like the legal heir Certificates and other documents essential to the case to be filed before the court.
1. What makes a Will legal?
Ensuring the following makes a Will legal:
(i) The Will should be written with consent and free will of the testator.
(ii) The Will should be signed by two witnesses who have seen the testator writing the Will.
(iii) Will should be registered.
2. What are the common mistakes that shouldn’t be made while drafting a Will in order to avoid any dispute later?
Following mistakes should be avoided while drafting a Will:
(i) Not being specific about the assets.
(ii) If there are changes in the status of assets, not making the necessary alterations in the Will.
(iii) If you are making a new Will, not making declarations to revoke previous Wills made by you.
(iv) Appointment of any interested party as executor.
(v) Not appointing a guardian for minor children.
3. If the Will is signed by a single witness, will it be valid?
No. There need to be two signed witnesses to a Will, after which it will be considered valid even if it is not registered.
4. Can you update/ change your Will?
Yes, you can update/ change your Will. It can be done by discarding the old Will and drafting a new Will. If the Will is filed before the Registrar then the agent appointed by the testator can apply for amending the registered will.
5. Is handwritten Will legal in India?
Yes, the handwritten Wills are legal in India. However, they need to be legible and should also follow the criterions or the essentials of a valid will.