Legal Question in Wills and Trusts in India
My mother expired last year.
My brother was staying with her and after her death we opened an envelope which was in the custody of this brother. The envelope contained a will and all moveable and immoveable assets were willed to this brother. This was surprising because my mother equally loved me and there was no reason for her unhappiness with me.
Can I challenge the will because of following reasons :
1. The envelope did not have any seale, it was just stapled and was lying in possession of the brother who is 100 % beneficiary as well as the executor.
2.The envelope could have been opened and stapled again.
3.The two witnesses have not signed at the same time as the testator.
3. The will is typed in a very strongly legal language in English, which I doubt if mother could understand ( she was class 10 pass and had very little english knowledge)
4 During her life time, she always used to tell me that she will distribute her wealth equally.
First of all, are these sufficient grounds to challenge the will and if yes how to go about it ?
2 Answers from Attorneys
1. Seal not necessary.
2. It is a presumption only. Proof of mischief to be established.
3. How you say the witnesses have not signed at the same time.
4. Copy of Will if sent then it will be helpful to give opinion on this.
5. Proof needed.
Anyway don't get dejected. There are so many grounds to challenge the Will and you can do that in the court. If you want further advice contact me at [email protected]
01.05.2012
Dear Sir / Madam,
1) A Will to be valid has to be backed by a Probate from the Court to be obtained by the executor to be able to transfer any property lying in the name of your mother, to his sole name.
2) To be valid, the Will has to be signed with name and address of witnesses, who will be summoned to Court at the time of obtaining the Probate.
3) Even the Court is bound to issue notices to all the legal heirs to remain present when the Probate is being decided and hear their viewpoint.
4) The Court will establish whether your mother was not forced to sign the Will under any compulsion or duress.
Only after all the above, the Probate will be passed. So your elder brother has to first do all this running around and rigmarole to be able to get the property transferred in his name, which is difficult, since the Court will give a fair hearing to your claim.
You can mail me for further on-line advice at [email protected]
Regards,
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