Challenging a Will: Validity, Probate and How to Contest It

Disputes over Wills are among the most emotional civil cases. A relative produces a Will that favours one child, or leaves out a spouse, or surfaces after years, and the family is left asking whether it can be challenged. The answer depends on whether the Will meets the legal requirements, whether it was properly proved, and whether the circumstances around it are genuine. This guide explains the rules, with points specific to Tamil Nadu.

What Makes a Will Valid?

A Will is the legal declaration of a person's wishes about their property after death. For Hindus, Muslims (within limits), Christians and others, the Indian Succession Act, 1925 sets the requirements. A valid Will generally needs:

• A testator of sound mind, who is an adult and who understands what they are doing
• Free consent, without fraud, coercion or undue influence
• The testator's signature or mark on the Will
• Attestation by at least two witnesses, each of whom saw the testator sign and signed in the testator's presence

Registration of a Will is not compulsory, though it adds strong evidence that it was made. An unregistered Will can be valid if it meets these requirements and is proved properly.

How Is a Will Proved?

Because the testator is no longer alive, the law requires the person who relies on the Will to prove its execution. Under the law of evidence, now Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 (earlier Section 68 of the Evidence Act), at least one attesting witness must be examined to prove that the Will was executed. If no attesting witness is available, other evidence is needed. Proving a Will is therefore a matter of evidence, not just the document.

Does a Will Need Probate?

Probate is a court's certificate that a Will is genuine and that the executor named in it can deal with the estate. It is not required everywhere, but in Chennai it often is. Under Sections 57 and 213 of the Indian Succession Act, a Hindu Will made within the local limits of the Madras High Court's original jurisdiction, which covers the city of Chennai, or one that relates to immovable property in those limits, must be proved in probate before the executor or legatee can establish rights under it in court. For Wills made outside those limits, probate is not compulsory, though many families still obtain it to avoid disputes. Probate petitions for Chennai Wills are filed before the Madras High Court's original side, and elsewhere before the district court. Our guide to legal heir and succession certificates explains the related documents.

On What Grounds Can a Will Be Challenged?

Common grounds include

• The testator lacked mental capacity because of illness, age or medication
• The Will was forged or the signature is not genuine
• It was procured by fraud, coercion or undue influence by a beneficiary
• It was not properly executed or attested
• It is not the last Will, because a later Will or codicil exists
• Suspicious circumstances surround it, which the propounder has not explained

What Are Suspicious Circumstances?

The Supreme Court has laid down principles since H. Venkatachala Iyengar v. B.N. Thimmajamma (1959). The person asserting the Will must prove that the testator signed it with a sound and disposing mind. If there are suspicious circumstances, they must also remove those suspicions to the satisfaction of the court. Examples include a Will that benefits the person who arranged it, a signature that looks shaky or different, a Will that leaves out natural heirs without a reason, hurried execution near death, and the beneficiary's active role in preparing it. Courts examine these closely, and a Will that fails the test is refused probate or declared invalid.

How Do You Contest a Will?

If probate is sought, a person who objects can file a caveat to be notified and then oppose the probate petition, which turns it into a contested suit. If no probate is sought and the Will is relied on in another proceeding, such as a partition or a title suit, the objection is raised there, or a suit for a declaration that the Will is void can be filed. A suit for a declaration is generally subject to a three-year limitation period running from when the person learns of the Will, so delay can harm a claim. Gather the Will, medical records, witness details, and the testator's earlier conduct as evidence.

What Cannot Be Done by a Will?

A Will can dispose only of what the testator owns. It cannot give away another person's property, or the whole of joint family property where the testator is only a coparcener, as we explain in our guide to daughters' rights in ancestral property. Under Muslim law, a Will is generally limited to one-third of the estate unless the heirs consent. A Will also cannot defeat a spouse's legal rights to maintenance.

What If There Is No Will?

Then the property passes by the law of intestate succession, covered in our guide on what happens to property if someone dies without a Will. Where a Will is declared invalid, the same rules apply.

Will disputes are won on evidence and procedure, and they often require action within a short time. Our Civil & Property Law practice advises families on probate, contested Wills and succession disputes, and you can request a consultation.