Regarding a registered will
Ramesh
(Querist) 07 June 2014
This query is : Resolved
if a 10 yrs old registered WILL can challenged in court then what is the use of write a WILL
Lawyer SALEEMA KABEER
(Expert) 07 June 2014
Irrespective of the age of will, it can be challenged. If a will is disputed, no doubt, the will has to be proved as per section 68 of the Evidence Act.
According to the said Section 68 of the Evidence Act, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving an evidence.
Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.
In a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.
Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This Section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence.
Devajyoti Barman
(Expert) 07 June 2014
The age of a document including a Will can be challenged at any point of time.
Even in many states of India where Probate is mandatory, the Will is put to legal test to prove its validity when any of the legal heirs of the expectant of the Will can challenge it.
Sankaranarayanan
(Expert) 07 June 2014
Yes will can be challennged at any point of time. I do agree with Barman Ji
Rajendra K Goyal
(Expert) 07 June 2014
Can be challenged to test legality. Agree with the experts.
Ramesh
(Querist) 15 June 2014
In the above WILL:-
1(A) Father has mention how to distribute his movable property (gold & cash)but later he himself distributed all jewellery among his sons (but there is no written proof)and added names of his sons and grandson along with his name in the different fixed deposits in the bank which can be verified with bank records.
1(B) Thus with respect to fixed deposits the sons and grandsons have became owner of said fixed deposits whose names have been added along with father name in FD’s.
My question is :-
(A) Whether the sons and grandsons can claim their rights in FD's whose names are not added in said FD's.
(B) Do they have legal rights whose names are added in said FD’s.
(C ) Is there any judgement on same or similar ground. If yes then kindly provide details of judgement. Please accept our thanks in advance for your kind help.
2(A) With respect to house property ( construct by earnings of father) he divided it in Four shares, three among his three sons (Ashok, Anil & Arun) and one shares he kept for himself. Later he instructed Ashok to make payment to Anil & Arun of value of their shares in the house property (Value is decided by Father, Anil & Arun). Ashok made the payment but there is no written proof, only father had verbally mention to his all daughters about how he have distributed gold and house property and all daughters are ready to honour the WILL. For your information Ashok is living in same house, Anil is living in other house in same city and Arun is living in another city.
2(B) It means Ashok has ownership of 3/4 house and 1/4 share of father is in common for three son.
In his WILL father has specified that entire house property will be remain with Ashok.
3 In same WILL father has also specified about his immovable property in other city (where Arun is living) to remain with Arun. This property is currently occupied by Arun.
My question is :-
(A) Immovable property in other city which is in name of father and as per WILL granted to ARUN, can Ashok claim any right over that property.
(B) What action can be taken if Arun has already transferred the other city property of father in his own name.Is there any judgement on same or similar ground. If yes then kindly provide details of judgement.
(C) Do grandson’s have rights over grandfather’s property (movable and immovable created by grandfather’s own earnings) if father’s are alive.
Problem is :- Anil & Arun are claiming their rights and shares in above movable (FD’s) and non movable property (1/4 potion of house) of father.
The WILL is registered & signed by two witnesses.
Kindly explain and guide point wise in detail so we can overcome with the matter. Thanks & Regards.
