In India, the concept of Will has its deep-rooted origin for a very long time;
its importance grows with the feeling of transferring family wealth and business
from one generation to another with ease.
A Will is a declaration by way of an established instrument wherein a person
disposes of their property which shall take effect after their death and which
to its primary nature is ambulatory and revocable during that person's life. The
Will was mainly recognised because of its ambulatory characteristics as it was a
distinguishable feature of the disposition from the normal deed. According to
the statute, a will is the aggregate of man's testamentary intention so far as
their manifested duly executed.
A will is a written document wherein a person states the procedure of devolution
of his/her property and manifest his/her desire as to what and how a lifetime
worth of assets will be dealt with after his/her death. A person who creates the
Will is known as the 'Testator', and the person for whom the Will is executed is
known as the executor, and the property disposed of in the Will is known as
the subject matter of the Will.
In India, as the registration of the Will is concerned, the Indian Registration
Act, 1908 deals with the provision that has to be complied with, and as per the
provision of the Indian Registration Act, 1908, there exists no provision for
making the registration of the Will compulsory , because if the Act makes such
document to be registered compulsorily that will attract some adverse
consequences in many aspects of its practice in India.
The registration of the
Will in India is optional and at the peril of the parties creating a Will. The
contrary opinions have been formed on the matter of registration of Will. It is
always advisable by the legislature that a Will if made, should be registered.
The Will has not necessarily been too registered by the testator or the creator
of the Will, but any person who is an executor of the Will can write the Will
after the testator's death.
A Will can be kept with any person by himself
(testator) or by any executor with the registrar wherein the Will was
registered; the Will of the person can be deposited in the seal covered with the
testator's name attached with the statement of nature of the document.
There are several legal considerations to creating a Will. The registered Will
is a registered document/deed that can be challenged in the court of law for
many reasons mentioned in this article below.
Reasons pursuing to which a registered Will can be challenged in the court of
Fraud A document made by any person that obliges any other person to work in part
or in full for consideration or without any consideration will not be
allowed to sustain. Such document will not be attributed any validity or
legality in the eye of law. A registered document is though earned, a
presumption that it is free from any malice or by any way illegal; according
to the same understanding, it is interrelated that the registered Will is
free from any fraud. The person who challenges the Will in the court of law
on the reason that it was created by fraud the burden is upon him to prove
the fraud in the registered document or registered Will.
Coercion Any person committing an act of violence against any such person from whom
any obligations have to be fulfilled or any task has to be compelling
without the consent of his/her is known as coercion. An act of coercion is
illegal in the eyes of the law. If the reregistered Will is created by an
act of coercion, it will be deemed unlawful, but such a person claiming the
Will to be illegal has to prove that the Will is unlawful in this context.
Undue Influence Undue influence is to use the influence by way of position of power or for
any reason of emotional connection wherein the decision is taken is not
based on sound mind or informed reason. Such a factor plays a major role in
deciding whether any document registered under such influence has any
morality or, for that purpose, any legality. The registered Will for any
purpose, if made by the undue influence of any family member or by any
member of the testator, can be challenged in the court of law if proven by
the substantial evidence on this behalf.
Wills having suspicious nature Various aspects prove the legality of the Will in the court of law, whereas
the nature of Will also falls prey to being challenged if the Will is not
created in complete accordance with these aspects. Following are various
aspects if found, or deficient such Will could be challenged in the court of
- When any person creates a Will wherein any of the content(s) of the Will
is vague or has no meaning as to substance, then such Will can be
challenged, whereas if there exist two Wills wherein one is vague and other
supplements other at the same time then such Will can be challenged, and
such objection will be allowed by law
- There exists a fault with regards to the stamp required by the Testator
for registration of Will, and if such Will is not duly stamped but still
registered, it can be challenged.
- If the thumb impression is required on the Will or not duly made or if
there are more thumbprints though required by the law, such impression
creates confusion among the signatories on the Will, such confusion on a
Will can also be challenged in the court of law.
- If by the creation of Will there exists a disposition of property or
devolution of any rights in the property but such disposition or devolution
is made in favour of any person who is not remotely connected or there exists no
connection to substantiate Will's validity, then such Will can be challenged in
the court of law.
- The Will has been executed at any place, but while registration, the
date, time, and place has to be mentioned on the Will, but if at all the
site of the execution on the Will is not mentioned, then such Will can be
challenged in the court of law. E.g., If a person has executed a Will in a
hospital, but the executor or any person concerned failed to mention this on
a Will, then there can be a question raised on the validity of the Will in
the court of law.
Error in executing the WillAs any person who wishes to execute a Will, he has to perform some functions in
creating Will and then some legal compliance to validate the Will and create a
Will that has the support of law and is recognised in the eye of law. If there
are errors in the execution of the Will, then such a Will can be challenged in
the court of law.
Error in the substance of IntentionAs discussed above, the Will can now be fairly understood as the Testator's
demand/desire/order for dealing with his property after death. Any person while
making a Will maintains a clear and transparent content as to the wish of the
Testator, but such intention of the testator should be made clear, and the
content of the Will should be concise and unambiguous, but if by any
interpretation of the Will there seems so that the provision of any clause in
the Will seems ambiguous or contrary to the intention of the testator then such
clause or any Will to that extent can be challenged in the court of law.
Incapacitate for TestamentaryThere are certain pre-conditions required by any person who creates the Will
that is mandatory for him/her to comply, without which anything done in such
process of creation will be termed as null and void.
Following are certain conditions for creating a Will:
- A person should be in the clear conscious to understand the terms and
content of the Will and its effect with regards to the execution.
- A person should be told, or he/she should understand the extent of
his/her property he/she wishes to dispose of or his/her rights he/she wishes
to devolve to someone.
- A person willing to create a Will shall be able to comprehend and
appreciate the claims to which he/she ought to give effect in terms of
- A person should be sound, and every decision taken by him/her should be
in clear mind to its application when it's brought in effect as to
- No person should be allowed to make a decision or create a Will at the
time of any phase of paralysis of sound thinking or informed decision
- If a person has a situation of mental disorder in intervals, a Will can
only be created when the person is of sound mind.
- A person should comply with all the requirements of section 10 of the
Indian Contract Act, 1872 for a valid establishment of Will.
A Will is a very important aspect of a person's life as it decides who will
inherit all the hard-earned money once the person is dead. Therefore, in a
country like India, it becomes very important that if a person finds a Will
formed to be unsatisfactory, then he/she has the right to challenge the
registered Will in the court to make sure there is no misconduct happening. The
registered Will can be challenged for all the reasons mentioned above, and the
procedure to be followed has been discussed in the article.
Award Winning Article Is Written By: Mr.Kishan Dutt Kalaskar
Authentication No: JA38361830884-09-0122