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Can will be challenged if neither registered nor probated ?
29-Jan-2023 (In Wills / Trusts Law)
Sir / madam mygrandfather wrote a will on my name{hindu family} When my brother is constructing a house by the side of our ancestral house {according to the will of my grand father it belongs to me } without set backs.. i filed a case against him 4 years back and revealed that i am the owner of the ancestral house according to the will written by my grandfather,in that case my brother in written had given that he will follow the setback rules but did not objected my ownership. till now the will is neither registered nor probated. does this statement is enough that i revealed that i am having a will and i am the owner of thr house.. or else i have to give a copy of it to my brother through court. if i dont send him a copy and if he challenges that will what are the consequences of that challenge?should i have to proove its genuinness or else i already had told him that i am the owner 4 yrs back in that case,to which he never rised any objection.will this be in favour of me,plz help me
Yes, it can be challenged.
A will is a document used by an individual, called the testator, to indicate how his assets are to be distributed after he dies. In other words, it is a legal instrument specifying the method to be applied in the management and distribution of a person's estate after his death.
Usually certain legal instruments specified in the Registration Act, 1908, require compulsory registration with competent authorities. Although, registration of a will is not compulsory in India, but registration implies that the person writing the will and the witnesses have appeared before the registering officers who have verified their identity and attested the same.
On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate. `Probate Order' herein means copy of a Will certified by Court of competent jurisdiction, which is to be treated as a direct evidence of the authenticity of a will thereby granting administration to the asset. In other words, probate is treated as conclusive evidence of genuineness of the will.
Although there is no explicit provision in law which states that a "Registered Will needs to probated", but if you apply for probate orders, it will be a conclusive evidence of genuineness of the will. It is further relevant to mention here that when you file probate application, you are required to pay a Court Fees as mentioned in Section 19 -1 of Court Fees Act which is approximately 2% to 3% on the value of the property.
With respect to your last query "Whether you should get your will probated, depends on the fact of your case. If there is no dispute between the legal heir and Will is not ambiguous, then there is no need for probation. You can get the property mutated in records of the MCD and other authorities like electricity board and Jal board etc. If there is a dispute, then you can file an probate application Section 276(1) of Indian Succession Act 1925 seeking for probate order.
A will is a document used by an individual, called the testator, to indicate how his assets are to be distributed after he dies. In other words, it is a legal instrument specifying the method to be applied in the management and distribution of a person's estate after his death.
Usually certain legal instruments specified in the Registration Act, 1908, require compulsory registration with competent authorities. Although, registration of a will is not compulsory in India, but registration implies that the person writing the will and the witnesses have appeared before the registering officers who have verified their identity and attested the same.
On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate. `Probate Order' herein means copy of a Will certified by Court of competent jurisdiction, which is to be treated as a direct evidence of the authenticity of a will thereby granting administration to the asset. In other words, probate is treated as conclusive evidence of genuineness of the will.
Although there is no explicit provision in law which states that a "Registered Will needs to probated", but if you apply for probate orders, it will be a conclusive evidence of genuineness of the will. It is further relevant to mention here that when you file probate application, you are required to pay a Court Fees as mentioned in Section 19 -1 of Court Fees Act which is approximately 2% to 3% on the value of the property.
With respect to your last query "Whether you should get your will probated, depends on the fact of your case. If there is no dispute between the legal heir and Will is not ambiguous, then there is no need for probation. You can get the property mutated in records of the MCD and other authorities like electricity board and Jal board etc. If there is a dispute, then you can file an probate application Section 276(1) of Indian Succession Act 1925 seeking for probate order.
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Adv. Siddhant Sharma
Delhi | 500+ Answers
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