What are the Challenges to Wills and probate claims: How to disprove a Will ?

It can be difficult task to challenge a Will. In most of the cases, courts stick stringently to Wills, since the testator is no longer there to defend himself. However, if you have an interest in the Will, you can challenge it, and if you are successful in convincing the court, then the Will can be voided in its entirety or in part. It is advisable to seek an advice from a practicing lawyer before challenging the Will, since the law surrounding challenges to a Will is complicated, plus, the facts of each case are unique. The Will can be challenged on any of the following grounds: Lack of due execution: A valid Will has to be in writing and signed by the testator in the presence of two witnesses, who must also attest the Will. If the process is not followed to the hilt, the Will can be challenged in the court of law. Lack of testamentary intention: Here, the person has to prove that the testator had no intention to make a Will, however, this plea is rarely used, as it is difficult to prove. Lack of testamentary capacity: The law requires that people above 18 years can make a Will. Adults are presumed to have a testamentary capacity, and therefore, the Will can be challenged on the basis of senility, dementia, insanity, or that the testator was under the influence of a substance, or in some other way lacked the mental capacity to make a Will. Basically, to challenge a Will based on mental capacity, the challenger of Will must show that the testator (the person who created the will) did not understand the consequences of making the will at the time of its creation. Lack of knowledge or approval: Challenger of Will can take the ground that the testator did not, in fact, know what was in the Will when he signed it. Undue influence: Challenger of Will can challenge a Will by showing that the Will was procured by fraud, forgery, or undue influence, i.e. lack of own free will or without adequate attention as to the consequences of bequests so made under the Will. Fraud or forgery: The burden of proof would be on the challenger of the Will to establish that the Will was forged (not signed by the testator) or was made as a result of fraudulent act. Claims by family: A family member can challenge a Will on the grounds that they were not provided for adequately in the Will. Revocation of earlier Will: A Will, although registered can be challenged in the court of law. The mere fact that a Will has been registered (not mandatory under the law to register the Will) will not, by itself, be sufficient to dispel all suspicions regarding it. A registered Will may not be the last testament. A new Will made, even if unregistered, if valid, will trump the registered Will. If there are any suspicious facts, the court will scrutinize the Will even if it is registered. • Do you need to go through probate if there is a Will? • Can you avoid probate by having a Will ? • How do I apply if there is no Will ? • How to apply for a probate ? For Legal queries Daniel & Daniel Attorneys & Solicitors 2132, Vasantham Colony, Annanagar-West, Chennai-600040 Phone: 9840787702 Email: advocatechennai@gmail

What are the Grounds under which a Will after a Probate can be contested

The Succession Act provides for certain grounds on which a Probate of a Will may be revoked, however such revocation can only be effected if the person challenging the Probate is able to convince the competent court that it is necessary to revoke the Probate 'for just cause'. Further for challenge of a probate, the law of limitation must also be abided by, as probate operates as a 'right in rem' granted by the competent court, operates from the date of grant of the probate, therefore a challenge which is hopelessly barred by limitation cannot be entertained by any court of law. Further, an order of revocation of the Probate would operate prospectively and such revocation does not obliterate bona fide transactions entered into by the executor during the pendency of the Probate. The challenger can challenge the Probate of Will on the following grounds: 1. The proceedings to obtain the grant of Probate were defective in substance; or 2. The grant of Probate was obtained fraudulently by making a false suggestion, or suggestion, or by concealing from the court something material to the case; or 3. The grant of Probate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or 4. The grant of Probate has become useless and inoperative through circumstances; or 5. The person to whom the grant of Probate was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect. • Do you need to go through probate if there is a Will? • Can you avoid probate by having a Will ? • How do I apply if there is no Will ? • How to apply for a probate ? For Legal queries Daniel & Daniel Attorneys & Solicitors 2132, Vasantham Colony, Annanagar-West, Chennai-600040 Phone: 9840787702 email: advocatechennai@gmail.com

How to get Probate in Chennai

Probate is the process of proving the last Will of a deceased person in a competent court of law. When a person dies, somebody has to deal with their estate. It is usually the executor of their Will who administers the estate and handles the disposal of their assets and debts. In order to get authority to do this, they usually need to obtain a legal document called a 'Grant of Probate'. To protect the interests of those who hold the deceased's assets (for example banks) the executor may be asked to prove they are authorised to administer the Will before the assets can be released. The Grant of Probate is the proof required. To obtain a Grant of Probate, the executor named in the Will must apply to the Probate Section of the High Court or the competent court of law as provided by the Indian succession Act. If their application is approved, the executor is given a Grant of Probate to confirm the author of the Will has died, the Will is authentic and the executor is who they say they are. An executor can be an individual or a trustee company like the Public Trustee. Once a Grant of Probate has been given, management of the deceased's assets can safely be transferred to the executor. All Grants of Probate are stored, along with the corresponding Will, at the Competent Court. These are public documents. If a deceased person does not have a Will, validation of their estate and benefactors is not done with a Grant of Probate, but with a similar document known as 'letters of administration'. In these circumstances, the Probate Registry refers to the Indian Succession Act to assess applications. • How do I know if probate is required? • How long does probate take to issue from the date of application? • How do I apply if there is no Will? For Legal queries Daniel & Daniel Attorneys & Solicitors 2132, Vasantham Colony, Annanagar-West, Chennai-600040 Phone: 9840787702 Email: advocatechennai@gmail.com