Will is the Legal Declaration of a Person

Download (0)

Full text

(1)

Will is the legal declaration of a person’s intention which he wishes to be performed after his

Will is the legal declaration of a person’s intention which he wishes to be performed after his

death and once the Will is made by the testator it can only be revoke during his lifetime.

death and once the Will is made by the testator it can only be revoke during his lifetime.  A person A person cannot give his ancestors property in the form of a Will but he can make a Will only of his cannot give his ancestors property in the form of a Will but he can make a Will only of his Self-Acquired property. A Will does not involve any transfer, nor affect any transfer inter-vivos, but it is Acquired property. A Will does not involve any transfer, nor affect any transfer inter-vivos, but it is an expression of intending to appoint a person who will look after the properties after his !estator" an expression of intending to appoint a person who will look after the properties after his !estator" death. A Will regulates the succession and provides for succession as declared by the testator. death. A Will regulates the succession and provides for succession as declared by the testator. Historical Background of ‘Wills’:

Historical Background of ‘Wills’: As the time rolled the emergence of the Will became more As the time rolled the emergence of the Will became more  popular,

 popular, #ndian $aw whi#ndian $aw which is governed uch is governed under %Sectionnder %Section& '( & '( of )!he #ndian Sof )!he #ndian Succession uccession Act, *+Act, *+'' which provides different rules for intestate succession and testamentary succession in #ndia. #t applies which provides different rules for intestate succession and testamentary succession in #ndia. #t applies to all the communities in #ndia except uslim community. #n #ndia there is a well developed system to all the communities in #ndia except uslim community. #n #ndia there is a well developed system of succession laws that governs a person(s property after his death. %!he #ndian Succession Act *+'( of succession laws that governs a person(s property after his death. %!he #ndian Succession Act *+'( applies expressly to Wills and codicils made by

applies expressly to Wills and codicils made by /indus, 0uddhists, Sikhs, 1ains, 2arsis /indus, 0uddhists, Sikhs, 1ains, 2arsis andand 3hristians but not to ohammedans as they are largely covered by uslim 2ersonal $aw. 3hristians but not to ohammedans as they are largely covered by uslim 2ersonal $aw.  Statutory Definition of

 Statutory Definition of ‘Will’:‘Will’: !he term %Will( is defined under %Section& h"( of !he )#ndian !he term %Will( is defined under %Section& h"( of !he )#ndian Succession Act, *+', means the legal declaration of the intention of a testator with respect to his Succession Act, *+', means the legal declaration of the intention of a testator with respect to his  property whi

 property which he desires to be ch he desires to be carried into effcarried into effect after his death. ect after his death. A A testator is auttestator is authorised with ahorised with a  power to app

 power to appoint any person aoint any person as beneficiary of his beneficiary of his Wis Will whereas %Sectill whereas %Section& '( on& '( deals with tdeals with the lawhe law regulating succession to deceased persons moveable and

regulating succession to deceased persons moveable and immovaimmovable propertyble property Meaning of ‘will’:

Meaning of ‘will’: A Will or testament is a legal declaration by which a person, the testator, names A Will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his4her estate and provides for the transfer of his4her property at the one or more persons to manage his4her estate and provides for the transfer of his4her property at the time of death. A Will can be made by anyone above * years of age in #ndia. A Will is a statement time of death. A Will can be made by anyone above * years of age in #ndia. A Will is a statement made by a testator in the written form stating the manner in which his estate4property must be made by a testator in the written form stating the manner in which his estate4property must be

distributed after his death. A Will being a testamentary document comes into effect after the death of distributed after his death. A Will being a testamentary document comes into effect after the death of the testator and if the person dies without writing any Will then he is said to be have died intestate. the testator and if the person dies without writing any Will then he is said to be have died intestate. !he person in whose favour the testator bestows the benefits called beneficiary or legatee. A Will is !he person in whose favour the testator bestows the benefits called beneficiary or legatee. A Will is otherwise called as !estament.

otherwise called as !estament.  Features of A Valid ‘Will’:

 Features of A Valid ‘Will’: !here are  !here are certain characteristiccertain characteristics which should be included in thes which should be included in the instrument of will such as

instrument of will such as &-• !e "a#e of !e estator:

• !e "a#e of !e estator: !he name of  !he name of the testator should be mentioned accurately without anythe testator should be mentioned accurately without any error in initials, spelling or grammatical mistake so that it will not affect the instrument of Will. !he error in initials, spelling or grammatical mistake so that it will not affect the instrument of Will. !he name of the testator can

name of the testator can also be clarified by also be clarified by looking into his birth certificate or any schoollooking into his birth certificate or any school certificates.

certificates.

• $ig!t o A%%oint &egatee:

• $ig!t o A%%oint &egatee: !he testator  !he testator is having absolute right to appoint any person as is having absolute right to appoint any person as a legateea legatee or beneficiary of a Will and legatee should execute the Will carefully and in accordance with the law. or beneficiary of a Will and legatee should execute the Will carefully and in accordance with the law. • o ake 'ffect After Deat!:

• o ake 'ffect After Deat!: A testator who is having power to make the Will during his lifetime, A testator who is having power to make the Will during his lifetime,  but it will t

 but it will take effect onlake effect only after his deathy after his death. A . A gift made by a gift made by a person during hperson during his lifetime and wis lifetime and will takeill take effect during his lifetime, cannot be considered as a Will.

effect during his lifetime, cannot be considered as a Will. • $e(oca)ility *nder !e &aw:

• $e(oca)ility *nder !e &aw: #n general a Will made by the testator can be revoke at any time #n general a Will made by the testator can be revoke at any time during his lifetime and testator can choose any other

during his lifetime and testator can choose any other person as his legatee. !here may person as his legatee. !here may be chancesbe chances where a testator wishes to bring some alterations in the Will then he can make some necessary where a testator wishes to bring some alterations in the Will then he can make some necessary amendments in the prepared Will which is otherwise called as 3odicil. A third party can not file a amendments in the prepared Will which is otherwise called as 3odicil. A third party can not file a civil suit against the testator on the ground of cancellation of the Will. A Will made by the testator civil suit against the testator on the ground of cancellation of the Will. A Will made by the testator may be irrevocable in some cases where an agreement is entered into contrary to the Will, may bind may be irrevocable in some cases where an agreement is entered into contrary to the Will, may bind the testator.

the testator. • +ntention

• +ntention of !e of !e estator su%re#e:estator su%re#e: !he testator of the Will has right to revoke Will at any time !he testator of the Will has right to revoke Will at any time which can only be proved by the intention of the testator that whether he is intending to revoke the which can only be proved by the intention of the testator that whether he is intending to revoke the

(2)

 previous testamentary instruments made by him or he can state in his Will that %!his is my last Will( then it can be presumed that all the earlier testamentary instruments has been revoked.

• !e Declaration to )e ‘&ast Will’: A person as testator has power to make declaration of Will unnumerable times but it is always the last will of testator which will prevail. !he words )# declare this to be my last will need not be stated in the instrument of the Will. 5nce the Will is made by the testator #nserting of words %$ast and 5nly will( at the time of death it can be presumed that all the  previous Wills will get revoked and fresh Will has to be effected.

• &ost Su)se,uent ‘Will’: ere loss of the original Will does not operate a revocation but it has to  be inferring by the stringent evidence to prove its revocability and a testator must show the genuine

reasons for the loss of the Will. 5nce it is proved that a original will is lost then %Subsequent Will( will be valid.

-inds of ‘Wills’: A testator who has right to make a Will for the future benefits of his family members which will take effect after his death, the there are certain types of Wills which has to be looked into&

./ 0ri(ileged ‘Wills’: As it can be understood from the word privilege provided to certain persons. A  privileged Will is one which is made by any soldier, airman, navy persons, mariner who are willing

to dispose of their estate during their course of employment. A soldier includes officers and all other rank officers of service but does not include a civilian engineer employed by the army, having no military status. A soldier while making an instrument of Will must have attained the age of *6 years and where a will made by the soldier is in the oral form, will be valid only for a month though a written Will always remain operative. A privileged Will may be revoked by the testator by an

unprivileged Will or codicil, or buy any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged Will, or by the burning, tearing or otherwise destroying the same by the testator.

1/ *n%ri(ileged ‘Wills’: Wills executed according to the provisions of %Section 78( of the %#ndian Succession Act, *+'( are called 9nprivileged Wills. An unprivileged Will is one which is created by every testator not being a soldier, airman, mariner so employed. An unprivileged Will like 3odicil can be revoked by the testator only by another Will or by some writing declaring an intention to revoke the same and to be executed in the manner in which an unprivileged Will can be executed under the Act or by burning, tearing or destroying of the same by the testator or by some other person in his presence and by his directions with the intention of revoking the same.

W!o 2an Make ‘Will’: :very person who is competent to contract may make a will but he must be ma;or, sound mind and willing to write a Will. Any person who is the sole owner of a self-acquired  property can bequeath by way of will. A person of unsound mind can also make a will but only in

lucid intervals. A Will cannot be made by some persons i.e. minors, insolvent, persons disqualified under any law by the court. A Will executed by a minor is void and inoperative though a testamentary guardian can be appointed for the minor to dispose off the property. A Will can be made by the deaf and dumb person by showing consent through writing or gestures in sign language. <othing prevents a prisoner or alien in #ndia from drawing a Will.

For W!o# !e ‘Will’ 2an Be Made: Any person capable of holding property can be a legatee under a will and therefore a minor, lunatic, a corporation, a /indu deity and other ;uristic person can  be a legatee. Sections ** to **= of %#ndian Succession Act, *+'( put some restrictions on the

disposition of property by will in certain cases. >ispositions of property by will in some cases have  been declared void. #f the minor person has been named as legatee by a testator then a guardian

should be appointed by the testator himself to manage the bequeathed property.

W!at 2an Be Be,ueat! +n A ‘Will’: Any movable or immovable property can be disposed off by a will by its owner, that property must be a self acquired property of that person and it should not be an ancestral property of the testator. According to Section& 8? of %/indu Succession Act, *+'7( provides

(3)

that any /indu may dispose off by will or other testamentary disposition any property, which is capable of being so, disposed of by him in accordance with law.

3eneral 0rocedure o Make A ‘Will’& A %Will( should be prepared with utmost care and must contain several parts to make a complete Will though there is no defined format for making a Will  but a general procedure should be adopted while writing a Will by the testator which includes&

./ Declaration +n !e Beginning& #n the first paragraph, person who is making a Will, has to declare that he is making this Will in his full senses and free from any kind of pressure and undue influence and he has to clearly mention his full name, address, age, etc at the time of writing the Will so that it confirms that a person really wishes to write a Will.

1/ Details of 0ro%erty and Docu#ents: !he next step is to provide list of items and their current values, like house, land, bank fixed deposits, postal investments, mutual funds, share certificates owned by testator. /e must also state the place where he has kept all the documents if the will

documents are under safe custody of the bank then testator has to write details about the releasing of the Will from the bank. /ere it is the most important duty of the testator to communicate the above matter to the executor of the Will or any other family members, which will make the Will valid after testator death.

4/ Details of owners!i% By !e estator: A testator while making a original Will should

specifically mention that who should own his entire property or assets so that it will not affect the interest of the successors after his death. #f testator wishes the name of the minor as beneficiary then a custodian of the property should be appointed to manage the property.

5/ Attestation of t!e ‘Will’ : At the end, once the testator complete writing his Will, he must sign the will very carefully in presence of at least two independent witnesses, who have to sign a fter his signature, certifying that the testator has signed the Will in their presence. !he date and place also must be indicated clearly at the bottom of the Will. #t is not necessary that a person should sign all the  pages of the Will instrument but he must sign to avoid any legal disturbances.

6/ '7ecution of A ‘Will’: 5n the death of the testator, an executor of the Will or an heir of the

deceased testator can apply for probate. !he court will ask the other heirs of the deceased if they have any ob;ections to the Will. #f there are no ob;ections, the court will grant probate .A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. #n case any ob;ections are raised by any of the heirs, a citation has to be served, calling upon them to consent. !his has to be displayed prominently in the court. !hereafter, if no ob;ection is received, the probate will be granted and #t is only after that Will comes into effect.

$egistration of ‘Wills’: According to the Section& *6 of the %@egistration Act, *+?6( the registration of a Will is not compulsory. 5nce a Will is registered, #t is a strong legal evidence that the proper  parties had appeared before the registering officers and the latter had attested the same after. !he  process of registration begins when a Will instrument is deposited to the registrar or sub-registrar of  ;urisdictional area by the testator himself or his authorised agent. 5nce the scrutiny of Will

instrument is done by the registrar and registrar is satisfied with all the documents then registrar will make the entry in the @egister-0ook by writing year, month, day and hour of such presentation of the document and will issue a certified copy to the testator. #n case if registrar refuses to order Will to be registered then testator himself or his authorised agent can institute a civil suit in a court of law and court will pass decree of registration of Will if court is satisfied with the evidence produced by the  plaintiff. A suit can only be filed within 8? days after the refusal of registration by the registrar. #f the

testator willing to withdraw the Will after the process of registration then a sufficient reason has to be given to registrar, if satisfied he will order for the registration of Will.

$e(ocation of ‘Wills’& A Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will. A Will can be revoked by testator of the Will at any point of time which can be classified into two aspects such

(4)

as&-• Voluntary $e(ocation: A testator who wishes to revoke his original Will which is made by him on a specified date and time, he can make revocation of the will himself by writing a subsequent Will or codicil duly executed and by destruction of the previous will, means by burning, tearing, destroying or striking out the signature of the original instrument of a Will.

• +n(oluntary $e(ocation: According to the Section& 7+ of the #ndian Succession Act, *+' which deals with revocation of will by the testator(s marriage, however this provision does not apply to /indus. Section '= of the #ndian Succession Act clearly states that a testator(s marriage will not make the Will invalid.

 0ro)ate: #t is the copy of the will which is given to the executor together with a certificate granted under the seal of the court and signed, by one of the registrars, certifying that the will has been  proved. !he application for probate shall be made by petition along with copy of last Will and

testament of the deceased to the court of competent ;urisdiction. !he copy of the will and grant of administration of the testator(s estate together, form the probate. #t is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator. A probate is obtained to authenticate the validity of the will and it is the only proper evidence of the executor(s appointment. !he grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off which did belong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator. 2robate

 proceedings cannot be referred to Arbitration. !he probate court whether it is the >istrict 3ourt or /igh 3ourt" has been granted and conferred with exclusive ;urisdiction to grant probate of a Will of the deceased.

GROUNDS

FOR

CHALLENGI

NG

THE

VALI

DI

TY

OF

A

WI

LL

Under

Engl

i

s

h

l

aw

a

per

s

on

who

mak

e

s

a

Wi

l

l

(

t

he

t

es

t

at

or

)

c

an

dec

i

de

t

o

l

ea

v

e

t

hei

r

as

s

et

s

t

o

whome

v

er

t

he

y

wi

s

h

when

t

he

y

di

e,

howe

v

er

unpopul

ar

t

hat

dec

i

s

i

on

ma

y

b

e

wi

t

h

di

s

appoi

nt

e

d

r

el

at

i

v

es

(

a

l

t

hough

t

he

Cour

t

c

an

ov

er

r

i

de

t

he

t

er

ms

of

a

Wi

l

l

i

n

c

er

t

ai

n

l

i

mi

t

ed

s

i

t

uat

i

ons

under

t

he

I

nher

i

t

anc

e

(

Pr

ov

i

s

i

on

f

or

Fami

l

y

and

Dependant

s

)

Ac

t

1975.

Howev

er

,

t

he

v

al

i

di

t

y

of

t

hat

Wi

l

l

c

an

be

c

hal

l

enged

on

any

of

t

he

f

ol

l

owi

ng

gr

ounds

:

-•

Lac

k

of

due

ex

ec

ut

i

on

A

Wi

l

l

mus

t

be

i

n

wr

i

t

i

ng

and

s

i

gned

by

t

he

t

es

t

at

or

(

or

s

i

gned

by

s

omeone

el

s

e

i

n

t

he

t

es

t

at

or

s

pr

es

enc

e

and

as

i

ns

t

r

uc

t

ed

by

t

he

t

es

t

at

or

)

i

n

t

he

pr

es

enc

e

of

t

wo

wi

t

nes

s

es

,

who

mus

t

al

s

o

s

i

gn

t

he

Wi

l

l

i

n

t

he

pr

es

enc

e

of

t

he

t

es

t

at

or

.

Lac

k

of

t

es

t

ament

ar

y

i

nt

ent

i

on

You

woul

d

hav

e

t

o

s

how

t

hat

t

he

t

es

t

at

or

had

not

i

nt

ended

t

o

mak

e

a

Wi

l

l

.

I

t

i

s

us

ual

l

y

cl

ear

on

t

he

f

ac

e

of

t

he

Wi

l

l

t

hat

i

t

i

s

des

i

gned

t

o

t

ak

e

effec

t

as

a

Wi

l

l

s

o

t

hi

s

gr

ound

i

s

r

ar

el

y

us

ed.

Lac

k

of

t

es

t

ament

ar

y

c

apac

i

t

y

The

t

es

t

at

or

had

t

o

be

c

apabl

e

at

t

he

t

i

me

t

hat

t

he

Wi

l

l

was

ex

ec

ut

ed

of

dec

i

di

ng

t

o

mak

e

a

Wi

l

l

and

dec

i

di

ng

t

o

l

eav

e

hi

s

as

set

s

i

n

t

he

way

set

out

i

n

t

he

Wi

l

l

.

I

f

he

was

unabl

e

t

o

mak

e

t

hat

dec

i

s

i

on

f

or

hi

ms

el

f

bec

aus

e

of

an

i

mpai

r

ment

of

or

di

s

t

ur

banc

e

i

n

t

he

f

unc

t

i

oni

ng

i

n

hi

s

mi

nd

or

br

ai

n

(

whet

her

bec

aus

e

of

ment

al

i

l

l

nes

s

or

bec

aus

e

he

was

under

t

he

i

nfl

uenc

e

of

al

c

ohol

,

dr

ugs

or

medi

c

at

i

on)

he

woul

d

no

t

ha

v

e

had

s

uffic

i

ent

c

apac

i

t

y

t

o

mak

e

a

v

a

l

i

d

Wi

l

l

.

Lac

k

of

k

no

wl

edge

and

appr

ov

al

I

f

t

he

t

es

t

at

or

had

t

es

t

ament

ar

y

capac

i

t

y

and

t

he

Wi

l

l

has

been

dul

y

e

x

ec

ut

ed

t

he

Cour

t

wi

l

l

pr

es

ume

t

hat

t

he

t

es

t

at

or

k

new

and

appr

o

v

ed

t

he

c

ont

ent

s

of

t

he

Wi

l

l

unl

es

s

t

he

c

i

r

c

ums

t

anc

es

sur

r

oundi

ng

t

he

pr

epar

at

i

on

of

t

he

Wi

l

l

c

aus

e

t

he

Cour

t

t

o

be

s

us

pi

c

i

ous

(

e.

g.

bec

aus

e

t

he

mai

n

benefi

c

i

ar

y

under

t

he

Wi

l

l

pr

epar

ed

i

t

)

.

Undue

i

nfl

uenc

e

The

bur

den

of

pr

oof

woul

d

be

on

y

ou

t

o

s

how

t

hat

t

he

t

es

t

at

or

(5)

had

been

un

dul

y

i

nfl

uenc

ed

b

y

a

t

hi

r

d

par

t

y

t

o

mak

e

hi

s

Wi

l

l

i

n

t

he

t

er

ms

t

hat

he

had.

Fr

aud

or

For

ger

y

The

bur

den

of

pr

oof

woul

d

be

on

y

o

u

t

o

es

t

ab

l

i

s

h

t

hat

a

Wi

l

l

was

f

or

ged

(

i

.

e.

s

omeone

ot

her

t

han

t

he

t

es

t

at

or

s

i

gned

t

he

Wi

l

l

)

or

was

made

as

a

r

es

ul

t

of

a

f

r

audul

ent

ac

t

(

i

.

e.

t

he

t

es

t

at

or

was

mi

s

l

ed

i

nt

o

mak

i

ng

hi

s

Wi

l

l

on

t

he

t

er

ms

he

di

d)

.

Rev

oc

at

i

on

I

f

,

af

t

er

maki

ng

hi

s

Wi

l

l

,

t

he

t

es

t

at

or

des

t

r

oy

s

t

he

or

i

gi

nal

,

mak

es

a

l

at

er

Wi

l

l

or

mar

r

i

es

,

t

hat

Wi

l

l

wi

l

l

hav

e

been

r

ev

ok

ed

and

wi

l

l

not

be

v

al

i

d.

I

mpor

t

anc

e

of

Ev

i

denc

e

I

n

t

he

c

as

e

of

any

chal

l

enge

t

o

t

he

v

al

i

di

t

y

of

a

Wi

l

l

t

he

k

ey

wi

t

nes

s

t

he

t

es

t

at

or

wi

l

l

obvi

ousl

y

not

be

av

ai

l

abl

e

t

o

gi

v

e

ev

i

denc

e.

Ac

cor

di

ngl

y

,

obt

ai

ni

ng

ev

i

denc

e

f

r

om

ot

her

s

our

c

es

(

e.

g.

ot

her

s

r

ec

ol

l

ec

t

i

ons

;

doc

ument

s

et

c

)

i

s

c

r

uc

i

al

.

I

f

a

s

ol

i

c

i

t

or

dr

af

t

ed

t

he

Wi

l

l

,

ask

i

ng

t

o

s

ee

t

hei

r

l

e

i

s

a

good

s

t

ar

t

i

ng

poi

nt

.

Ti

me

Li

mi

t

s

f

or

c

hal

l

engi

ng

a

Wi

l

l

Ther

e

i

s

no

s

t

at

ut

or

y

t

i

me

l

i

mi

t

f

or

cl

ai

ms

t

o

c

hal

l

enge

a

Wi

l

l

.

Howev

er

,

i

n

t

he

ev

ent

of

i

nex

cus

abl

e

del

ay

,

a

s

ubs

t

ant

i

al

l

aps

e

of

t

i

me

(

wi

t

h

k

nowl

edge

of

t

he

pot

ent

i

al

c

l

ai

m)

,

or

ac

cept

anc

e

of

a

benefi

t

gi

v

en

under

a

Wi

l

l

,

t

he

Cour

t

c

oul

d

c

onc

l

ude

t

hat

t

he

c

l

ai

m

s

houl

d

not

be

al

l

owed

t

o

pr

oc

eed.

What

happens

i

f

t

he

chal

l

enge

i

s

s

uc

ces

sf

ul

?

I

f

t

he

Wi

l

l

s

val

i

di

t

y

i

s

s

uc

ces

sf

ul

l

y

c

hal

l

enged

t

he

t

es

t

at

or

s

ass

et

s

wi

l

l

be

di

s

t

r

i

but

ed

i

n

acc

or

danc

e

wi

t

h

t

he

t

es

t

at

or

s

pr

evi

ous

v

al

i

d

Wi

l

l

or

(

i

f

t

her

e

i

s

no

pr

ev

i

ous

v

al

i

d

Wi

l

l

)

t

he

i

nt

es

t

ac

y

r

ul

es.

Lack

of

Capac

i

t

y

A

v

al

i

d

wi

l

l

r

equi

r

es

t

hat

t

he

dec

edent

pos

ses

sed

"

t

es

t

ament

ar

y

capac

i

t

y

,

"

s

ome

t

i

me

s

r

ef

er

r

ed

t

o

as

ha

v

i

ng

a

"

s

ound

mi

nd,

"

at

t

he

t

i

me

t

he

wi

l

l

wa

s

made.

Th

e

d

ec

e

de

nt

mu

s

t

a

l

s

o

h

av

e

me

t

t

h

e

s

t

at

e'

s

mi

n

i

mu

m

a

ge

r

eq

ui

r

e

me

nt

.

Ch

al

l

e

ng

i

ng

a

wi

l

l

on

t

he

bas

i

s

of

c

apac

i

t

y

t

y

pi

c

al

l

y

r

equi

r

es

s

howi

ng

t

hat

t

he

dec

edent

di

d

not

under

s

t

and

t

he

nat

ur

e

and

ex

t

ent

of

t

he

pr

oper

t

y

or

t

he

i

dent

i

t

y

of

nat

ur

al

hei

r

s

.

T

y

pi

c

al

l

y

,

s

uc

h

a

c

hal

l

enge

r

equi

r

es

medi

c

al

e

vi

denc

e

s

howi

ng

ment

al

i

mpai

r

ment

.

Undue

I

nfluence

A

chal

l

enge

of

undue

i

nfluence

means

t

he

decedent

di

d

not

make

t

he

wi

l

l

of

f

r

ee

c

hoi

c

e,

but

s

ol

el

y

due

t

o

t

he

i

mpr

oper

i

nfl

uenc

e

of

anot

her

per

s

on.

A

c

ommon

s

i

t

uat

i

on

t

hat

l

eads

t

o

s

uc

h

a

c

hal

l

enge

i

s

wher

e

a

l

one

s

i

bl

i

ng

c

ar

es

f

or

an

i

nfi

r

m

par

ent

,

and

t

he

c

ar

egi

v

er

s

i

bl

i

ng

r

ec

ei

v

es

a

gr

eat

er

por

t

i

on

of

t

he

par

ent

'

s

es

t

at

e

t

han

ot

her

si

bl

i

ngs

.

Thi

s

i

s

par

t

i

c

ul

ar

l

y

t

r

ue

i

f

t

he

par

ent

has

changed

hi

s

wi

l

l

whi

l

e

under

t

he

c

ar

e

of

t

he

s

i

bl

i

ng

and

i

f

t

hi

s

f

ac

t

was

kept

s

ec

r

et

f

r

om

t

he

ot

her

s

i

bl

i

ngs

.

Fr

aud,

Mi

s

t

ak

e,

or

Ot

her

Fac

t

or

s

A

wi

l

l

c

an

be

c

hal

l

enged

f

or

f

r

aud,

s

uc

h

as

when

pages

hav

e

been

i

ns

er

t

ed

af

t

er

t

he

dec

edent

s

i

gned

t

he

wi

l

l

or

t

he

dec

edent

'

s

s

i

gnat

ur

e

i

s

f

or

ged.

I

f

t

he

wi

l

l

was

not

ex

ec

ut

ed

pr

oper

l

y

,

wi

t

h

onl

y

one

wi

t

nes

s

s

i

gnat

ur

e

when

t

wo

ar

e

r

equi

r

ed,

f

or

ex

ampl

e,

t

he

wi

l

l

c

an

be

c

hal

l

enged

as

i

nv

al

i

d.

Somet

i

mes

a

wi

l

l

t

hat

has

been

pr

ev

i

ous

l

y

r

ev

ok

ed

i

s

mi

s

t

ak

enl

y

(

or

pur

pos

ef

ul

l

y

)

s

ubmi

t

t

ed

f

or

pr

obat

e.

Thi

s

ver

s

i

on

wi

l

l

be

r

ej

ec

t

ed

when

t

he

s

uper

s

edi

ng

wi

l

l

i

s

pr

o

vi

ded.

Chal

l

enges

Ar

e

Handl

ed

i

n

Pr

obat

e

Cour

t

You

c

hal

l

enge

a

wi

l

l

by

l

i

ng

an

appr

opr

i

at

e

pet

i

t

i

on

i

n

t

he

s

t

at

e

pr

obat

e

c

our

t

t

hat

has

c

ont

r

ol

ov

er

t

he

dec

edent

'

s

es

t

at

e.

The

t

y

pe

of

pet

i

t

i

on,

t

he

bas

i

s

f

or

t

he

c

hal

l

enge,

and

t

he

l

i

k

el

y

r

esul

t

s

depend

on

t

he

s

t

at

e

l

aw

wher

e

t

he

c

our

t

i

s

l

oc

at

ed.

Eac

h

s

t

at

e'

s

l

aw

has

i

t

s

own

r

ul

es

,

whi

c

h

c

an

di

er

gr

eat

l

y

.

Thes

e

i

nc

l

ude

t

he

deadl

i

ne

f

or

l

i

ng

y

our

c

hal

l

enge

and

whom

y

ou

mus

t

not

i

f

y

r

egar

di

ng

y

our

c

hal

l

enge.

Vi

ol

at

i

ng

t

hes

e

r

ul

es

can

del

ay

and

i

nc

r

eas

e

t

he

ex

pens

e

of

y

our

c

hal

l

enge,

or

r

es

ul

t

i

n

i

t

bei

ng

l

os

t

.

Di

s

adv

ant

age

of

Chal

l

engi

ng

(6)

a

Wi

l

l

Chal

l

engi

ng

a

wi

l

l

bec

aus

e

y

ou

bel

i

ev

e

y

our

i

nher

i

t

anc

e

s

houl

d

be

gr

eat

er

us

ual

l

y

i

nv

ol

v

es

a

r

i

s

k

a

v

i

ol

at

i

ng

t

he

"

no-

c

ont

es

t

cl

aus

e"

t

hat

i

s

t

y

pi

c

al

l

y

f

ound

i

n

a

wi

l

l

.

I

f

y

our

c

hal

l

enge

f

ai

l

s

,

t

he

wi

l

l

i

s

v

al

i

d

and

t

he

no-

c

ont

es

t

c

l

ause

wi

l

l

pr

ev

ent

y

ou

f

r

om

r

ec

ei

v

i

ng

t

he

i

nher

i

t

anc

e

l

ef

t

t

o

y

ou

i

n

t

he

wi

l

l

.

St

at

e

l

aw

v

ar

i

es

r

egar

di

ng

t

he

c

ondi

t

i

ons

under

whi

c

h

a

no-

c

ont

es

t

c

l

aus

e

i

s

val

i

d,

s

o

i

t

i

s

i

mpor

t

ant

t

o

k

now

t

he

l

aw

i

n

y

our

s

t

at

e

bef

or

e

c

hal

l

engi

ng

a

wi

l

l

.

Figure

Updating...

References

Related subjects :