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Can a surviving spouse contest a will?

September 20, 2021

Normally, contesting a will can be a laborious situation, requiring a great deal of time and expenditure. A will is a legal declaration made for the disposition of the property according to the wishes of the testator. It takes effect only after the death of the testator (i.e. the author of the Will). The will is revocable during the lifetime of the testator. 

The basic criteria for making a will are as follows:

  • The person making the will should have testamentary capacity.
  • The person making the will should have a sound disposing mind.
  • The person making the will should know the contents of the Will.
  • The person making the will is free from undue influence, fraud, coercion, and the making of a will should be a voluntary act.

If any of the above criteria is hampered, then the will can be challenged in the court of law, resulting in the escape of a will in its entirety or part.

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Who has the right to contest a will?

The right to contest a Will, or the right to challenge the grant of probate, comes from the Indian Succession Act, 1925. The Act confers on a person with an “interest” in the estate of the testator seeking to contest the validity of the Will and the right to file a caveat against the grant of probate. The right is available to any individual with a “caveatable interest”. 

Caveatable interest means that a person having an interest in the estate of the deceased and is entitled to oppose the said grant as his interest is affected by the disposition made under the will. The Caveatable Interest, thus, depends upon the facts obtaining in each case as no hard and fast rule can be laid down, as such.

However, the Courts have expressed conflicting views on the interpretation of the term, that if anyone with even the slightest interest in the estate of the testator, or anyone’s rights are prejudiced by the grant of probate, then such person is said to have caveatable interest and is entitled to oppose such grant.

The person with caveatable interest covers the family of the testator, namely the spouse, children, and mother who would be considered as ‘Class-1’ heirs. At a wider level, it includes siblings, father, and other relatives as ‘Class 2’ heirs. Other parties having caveatable interest included creditors, business partners, employees, etc. Therefore, the ambit of people who may potentially contest a will is extremely broad.

What happens when a will is contested?

When someone with a caveatable interest contests a Will, the probate petition gets converted into a normal civil suit, wherein the caveator is the defendant and the petitioner, who had previously applied for a grant of probate, is the plaintiff. The burden of proof that the Will is valid is on the party that applied for probate (namely, the executor of the Will).

To contest a will, the person must file a contest during the probate process i.e. the Court procedure that enacts a will in which the executor of the will has to apply for probate or letter of administration before the appropriate court. The Court will validate the claim if it believes that the deceased failed to fulfill his/her duty to provide appropriate support to family members and the evidence is against him.

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Can this right of contesting the Will be waived off?

This provision in a statute and a statutory right of contesting a will can be waived if the same is aimed to safeguard the interest of an individual and has not been conceived in the public interest. The right to oppose the grant of probate is essentially the right of individuals to assert their interest or claim over the estate of the testator, and cannot be said to have been conceived in the interest of the public at large. The benefit of exercising the right accumulates only to the individual and not to the public.

Where the heirs who had previously signed a declaration stating that they had no objection to grant of probate, attempted to contest the Will subsequently on procedural grounds, had waived their rights to do contest the will. Consequently, the Will was declared valid.

English Courts have recognized the validity of contractual arrangements between beneficiaries about the distribution of assets of the testator, so long as there is no uncertainty and there is a clear intention to create legal relations.

The right to contest a will can be waived off by forming a contractual waiver. The Contractual waiver can be made by signing a family arrangement/agreement, whereby a set of members abandon all claims to certain (or maybe even all) properties and acknowledge that the title to such property’s vests in only one member- namely, the testator. And further that the testator can dispose of them under the Will without any right to contest, in return for some other consideration, which may be bestowed to the concerned members.

The determination of the validity of a contractual waiver would depend on the facts of each case, however, such a waiver is usually contemplated to be legally valid if it has the following elements:

  • A deliberate relinquishment of a right;
  • A conscious abandonment of an existing legal right, privilege, benefit, or claim, which if not for the waiver, the party could have appreciated;
  • An explicit and unambiguous agreement not to assert a right; and
  • Complete information on the part of the parties waiving the right, regarding the rights they are intentionally abandoning.

As is the case with any contract, a contractual waiver here can be challenged on grounds like fraud, coercion, undue influence, etc. However, barring these extreme cases, the Courts are otherwise responsive to the idea of such contractual waivers. For nervous testators seeking to prevent disputations and secure their family’s future, a contractual waiver of certain persons’ rights to challenge their Will may prove to be a prudent option.

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How a will can be contested?

A registered or unregistered will can be contested by following certain steps:

  1. The first step while contesting a will is to file a suit before the court of appropriate jurisdiction. For this, a suit can be filed in the Family Court or any court of the local jurisdiction.
  2. After that a Vakalatnama is issued, where a person gives authority to a lawyer to represent on their behalf. 
  3. After the issuing of Vakalatnama, a requisite court fee has to be paid according to the laws and ceilings laid down by the State.
  4. Then the case is initiated by submitting a plain and written statement. Then the court will release summons by issuing notice to the opposite parties to appear before the court. The burden of proof is always on the person contesting the will and to prove that such will is mala fide in nature and does not represent the intention of the testator. 
  5. Lastly, several documents supporting the case are filed including the listing of witnesses and due process of hearing.

Tips for Contesting Will

  • You must have a concrete justification for contesting the will. By concrete ground, it is meant that there must be evidence of fraud, coercion, undue influence, suspicion, testamentary incapacity present in the will.
  • Act promptly. Once the will has been executed as per the clauses of the will, it becomes a strenuous task for the court to execute or facilitate the redistribution of property. That’s why, if you think a will needs to be contested, do it speedily. Do not wait for a long period.
  • Consult a right and good legal advisor. Do not depend upon hearsay. Legal advice of an attorney is the last thing which you need in critical matters like these. One wrong piece of advice can shake the whole ground.
  • A person having possession of the property has a huge advantage in contesting the will.

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About Author

Shaily is a law student, pursuing B.Com LLb. (Hons) from University Institute of Legal Studies, Panjab University.

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