Cancellation of regd will and objection in will probate
Pappu Yadav
(Querist) 21 March 2013
This query is : Resolved
Dear sir, please clear my doubts about attessting witnesses of regd will and some other points. A and B are two Nephews(bhatija) of X. X had no son and no doughter.X was the head of the family.Everything was happening in the name of X.when X wife was expired, both A and B spent equal money for 13th day customs.Now X is expired and X made regd will in favour of B under his pressure.Now A has filed for cancellation of regd Will on several grounds. one attesting witness is in favour A and one attesting witness is in favour B.These both attesting witnesses were not knowing actual facts at that time.A is fighting for truth and most of the people is in favour of A. My question is that can A contest the validity of regd Will ? can A won the case because most of the people is in favour of A and also one attesting witness of Regd Will?Please reply
Raj Kumar Makkad
(Expert) 21 March 2013
Having more number of sympathizers is not guarantee of winning a case because the winning of the case at least in such matters depends upon many facts. The evidence of the attesting witnesses is very important in such cases but if neither of them is in position to tell the mental state of the testator at the time of execution of the will or the contents of the will then such deposition shall have no meaning.
In will cases, the beneficiary has to prove the genuineness of the will whereas the other party can raise objections thereto whichever are available depending upon case to case.
You shall have to make clear whether the X was owner of the entire property being Karta of the family or in his individual capacity. The consequences in both the situation shall be entirely different.
ajay sethi
(Expert) 21 March 2013
in the present case will has been registered . signed by X in presence of 2 attesting witnesses .
as per will property has been bequeathed to B . it is not necessary that attesting witness should know contents of will . what is required is testaor has to sign in the presence of attesting witness .
A can contest the will but he has to prove that X has made will under coercion in favour of B .
Pappu Yadav
(Querist) 21 March 2013
Thanks for your valuable replies. X was the karta of the family. still X was the owner of some joint family property.when Will was made in 2007 that time was X was 80 years old and he was not able to see properly or recognise anybody properly and some years back his eyes were operated.As per Wll X age is right now 87 but his actual age is more than 92 years.Correct age is also not mentioned in the Will.Attesting witnesses were not knowing that they were signing on the Regd Will.One attesting witness had not seen the testator and also not seen testator signature.As per one witness X had not signed on the WIll in the presence of attesting witness.
Raj Kumar Makkad
(Expert) 21 March 2013
Will is totally doubtful in the given case. Deal this case seriously. The will can be got set aside.
Now coming to other aspects, X was not entitled to make will qua the properties of HUF of which he was karta. The joint properties, may those be standing in the name of x being Karta of the family, cannot be willed out by him in favour of B in the given case and this is the solid point to save such properties.
If attesting witnesses had not seen the testator signing thereon, the will is clearly liable t be set aside.
ajay sethi
(Expert) 21 March 2013
evidence of attesting witness would be signifcant to disporve the will . id fhe testifies that deceased X has not signed in his presence you can challnge the will . further as pointed out by makkad you appear to have a good case on merits
Devajyoti Barman
(Expert) 21 March 2013
If the Will is disputed the onus is heavily upon the person who wish to get the Will proved by removing most of the suspicion.
Pappu Yadav
(Querist) 21 March 2013
But sir in the proceedings of court for the cancellation of regd will, both attesting witnesses will be cross examined or anyone because one witness had seen testator and testator had signed in the presence of one witness and one witness had not seen testator.
second question is that oral evidece and some pictures and videos will be accepted as a evidence in the court or not?
Once X was suffering from some diseases. A was not present in town. B went to Govt hospital for the treatment of X but there was not proper facility in Govt hospital. then doctors refered X to pvt hospital for better treatment.but B never went to pvt hospital for better treatment of X and even in the Regd Will it is mentioned that B was arranging better treatment for X which is false.
What evidence is acually required to centest the validity of this Will?
Testator was not knowing the fact that he has made any Will when he was alive.he never told any body that he had made any Will.In fact Testator X used to say that he will give equal share to both his nephews A and B.God knows How B managed to get Regd Will in favour of his name.
Raj Kumar Makkad
(Expert) 21 March 2013
Pappu! We are not your lawyers. We do indicate here the direction of the case and do advise roughly. It is not possible for anyone to specifically take up your case. If you require what type of evidence you require to lead then better avail the services of either of the experts.
Pappu Yadav
(Querist) 21 March 2013
once again thanks to all experts for their replies. If possible ,please help me to clear some doubts which is still in my mind about attesting witness. thanks and Best Regards to All experts of LCI
Devajyoti Barman
(Expert) 22 March 2013
Put all the questions which are relevant in your case.
