What is a Will? A will/testament refers to a legal document that states the wishes of the testator about how he/she wants his/her property to be distributed after the demise. The Will also mentions the names of one or more persons as the executor(s), to take care of the property till it is finally distributed.
Contesting the Will: A Will can be challenged by a person who feels that he/she has been denied the rightful benefit under a Will even when he/she fits certain criteria.
How can a Will be challenged? A Will can be contested in an Indian court of law on the basis of following:-
• The Law Reform (Testamentary Promises) Act, 1949.
• The Property (Relationships) Act, 1976.
• The Family Protection Act, 1955 and
• By contesting the legal validity of the will.
Under the TESTAMENTARY PROMISES ACT/LAW REFORM Act, an individual who had been promised by the deceased to be included in the Will in return for services rendered to the latter, this individual can also challenge the Will.
According to PROPERTY (RELATIONSHIPS) ACT, 1976 a person who is a husband or wife of the deceased, or had a civil union or was a de facto partner has the right to get the property of the relationship distributed as per the equal-sharing rules provided by this statute. Under this law individuals other than close relatives may also bring a claim. However, satisfactory proof of the promise made needs to be produced which isn’t always easy. Evidence could be in written or oral form. Under the equal-sharing rules of the PROPERTY (RELATIONSHIPS), ACT 1976 the legal spouse/civil union/de facto partner (including a same-sex partner) of a deceased person can rightfully challenge a Will for his/her share.
Under the FAMILY PROTECTION ACT the will can be challenged in the Family Court or High Court in case an individual is a close relative and is not provided for accordingly. As per this 1955 statute, a spouse, or de facto partner (including a same-sex partner) or civil union, child, grandchild, dependent step-child, parent, if dependent on the deceased or in case there’s no spouse, living partner or child of the deceased are allowed to apply to the Court. The claim will be upheld by the court if it believes that the deceased had failed to fulfill his/her moral duty to provide adequately for the support and maintenance of the family members.
The legal validity of the will can be contested if there is proof that:
• The will was not duly signed and witnessed.
• The testator was not aware of the will’s contents at the time of approving and signing it.
• The testator/ deceased was under “undue influence” when he/she signed the will.
• The deceased/testator was of unsound mind or was mentally unfit at the time of when of signing of the will.
The previous Will gets enforced in case of a successful trial. But in case there is no earlier Will then the deceased is said to have died “intestate” which means without leaving a valid will. The deceased’s assets are divided as per the law provided for such a situation.