Will and Partition
Querist :
Anonymous
(Querist) 16 April 2010
This query is : Resolved
Sir,
If the will does not indicate proper thumb impression of the testor and only partial thumb impression is there with slightly invisibility on the edge and there is no thumb impression at the end of the Will comprising two pages, out of two witnesses one witness is not existing and other witness is interested party in the Will. Further if the legal heirs are left out completely out of the Will and will does not mention how the property is acquired ?
Can the will be held valid ?
Can it be a ground for suspicious circumstances ?
There are only two legal heirs viz. Son and daugter and Mother expired intestate and daughter holding the Will. Can the legal heirs claim the property on declaring null and void on above grounds.
Please advice on the above.
Thanking you,
M.S.
R.R. KRISHNAA
(Expert) 16 April 2010
The will is valid. Absence of thumb impression on few pages does not invalidate the will. One witness does not exist is not a problem. Other witness being a interested party is also not a issue to invalidate the will. It is always not necessary to include the legal heirs in the will. It is the sole domain right of the testator to frame the will and no strict rules can be applied for drafting a will. Courts should normally look into the intention of testator while making the will and not into the technicalities.
A will unlike other legal documents should be construed liberally. Courts strictly look into legal documents like contracts, agreements, deeds, affidavits. But will is always considered by courts liberally and too much of technicalities cannot be applied to invalidate a will.
The legal heirs (son and daughter) can challenge the will but in addition to what has been stated above the legal heirs must establish before the court that there arises a serious suspicion and element of doubt as to the execution of will. If the legal heirs are able to establish that the will has been obtained by fraud clearly omitting the legal heirs and under suspicious circumstances then the will could be declared invalid otherwise the will will prevail.
