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Challenging a Will
Though a Will ensures the passing and distribution of the assets of an individual after their passing to the person of their choice, the process of drafting a Will is not always easy, as there are possibilities of raising numerous challenges on the validity of the Will, which often leads to legal disputes and familial discord.
The Indian Succession Act, 1925 ("the Act"), provides the legal framework within which the Wills are governed, including the provisions for challenging their validity. The following are the key provisions under which a Will is challenged in India:
- Testamentary Capacity: According to Section 59 of the Act, a minor, a person of unsound mind, or a person not capable of understanding the consequences of the creation of a Will, results in lack of testamentary capacity. The lack of testamentary capacity is ascertained by proving that the testator was of unsound mind, under undue influence, or subject to coercion at the time of making the Will.
- Fraud, coercion, and undue influence: Section 61 of the Act states that a Will can be challenged on the grounds of fraud or misrepresentation. A Will may be deemed invalid if it can be proven that the testator or the person making the Will was unduly influenced by another person by exerting pressure or coercion on the testator, thereby overriding his free will and judgement while making the Will.
- Including any immoral or illegal condition in the Will: Under Section 127 of the Act, if any clause of the Will is proven to be illegal or immoral, the Will can be declared void.
- Signature: According to Section 63 of the Act, a Will not duly signed by the testator in the presence of two or more witnesses, each of whom has seen the testator sign the Will, and the witnesses shall sign the Will in the presence of the testator, failure of which can result in challenging the Will.
A thorough understanding of the legal provisions governing the Will in India is necessary while drafting a Will. Considering the provisions addressing the grounds for challenging the Will a person can ensure the validity and enforceability of the Will thereby mitigating the risk of disputes and ensuring a smooth transition of assets to the intended beneficiaries.
