Writing A Will? How To Ensure That It Remains Immune To Challenge

Writing the last Will is an extremely crucial part of one’s financial planning journey, as well as to secure the family and loved ones from unexpected, unnecessary hassles, at the time of formally inheriting the assets. Writing a Will is simple; one can even write it on a plain piece of paper. Certain aspects make such a paper acceptable as a Will in the eyes of the law. In other words, when a Will is written considering all the requisite aspects, the paper (Will) becomes a valid Will.

Although one can always get a Will registered or probated to safeguard it against any probable future challenge, one should be aware of what these safeguard measures are and to what extent they make a Will immune to challenge.

Recently, in a case, the Gujarat High Court ruled that a mere registration of a Will does not validate a suspicious Will.

A few days back, the Delhi High Court also passed an interim injunction restraining Priya Kapur from dissipating the assets of late Sunjay Kapur, because the Will was challenged by the children of Sunjay’s ex-wife, actor Karishma Kapoor. The Will was questioned, and the court passed an order to protect the inheritance of the children until the case is settled.

These cases underscore how important it is to write a Will that remains immune to challenge.

Let’s understand:

What Makes A Will Valid?

• The person who makes the Will is called the testator. The testator should be 18 years of age and of sound mind while writing a Will.

• The testator should sign it in the presence of two witnesses. The witnesses are also required to sign the document (Will) to confirm their presence.

• Another key condition is that the Will should be written with a ‘free will’, under no coercion, threat, or anyone’s influence. Free consent holds paramount importance in making a Will valid.

Even if a Will fulfils all these conditions, it can still be challenged in a court of law, questioning its validity, as happened in Kapur’s case.

What Can Make A Will Suspicious Or Open To Challenge?

Sachin Bhandawat, partner, Khaitan & Co, says, “A Will may be treated as suspicious where there are unexplained or unusual circumstances surrounding its making. Common factors include questionable execution, the choice of witnesses who are closely related to or aligned with one beneficiary, or signs of undue influence or coercion. A Will that disproportionately favours one family member without a clear explanation, departs sharply from earlier dispositions, or contains internal inconsistencies or drafting irregularities may also invite scrutiny. Ultimately, the surrounding facts and conduct of the testator at the time of execution play a crucial role in assessing such challenges.”

Many times, lawyers suggest registering a Will. Does it really help?

Does Registration Or Probate Make A Will Immune To Challenge?

Registration of a Will is typically executed during the lifetime of the testator. As the process takes place before the Sub-Registrar, registration serves as proof that a Will is genuine. Sometimes, it can be executed after the testator’s death, too. “Department of Registration and Stamps, Government of Maharashtra has recently allowed for registration of a Will by the executor, even after the demise of the testator,” adds Bhandawat.

Probate is a judicial process that can take place only after the death of the testator. The court verifies the validity and authenticity of the Will, identifies beneficiaries, assesses the assets’ value, and confirms the executor’s appointment under the process.

Bhandawat says, “While neither is mandatory in India, registration is about official record-keeping; probate is about court validation. Registration of a Will provides an additional layer of authenticity and is often relied upon to counter allegations such as forgery, coercion, or lack of capacity. 

However, registration does not make a Will immune from challenge. A Will may still be contested on valid legal grounds, and the nature of the claim as well as the surrounding facts and circumstances will be decisive in determining whether such a challenge succeeds.”

How To Ensure That A Will Is Executed Smoothly Without Any Challenge

In India, many people don’t write a Will, and even if they write one, it may lack validity, leading to family disputes, legal battles, and harassment.

To avoid such circumstances, one should be careful while writing and executing a Will.

Bhandawat suggests that the testator should keep the Will updated after major life events, clearly identify all assets and beneficiaries, specify the nature of each bequest, and include a residuary clause for assets not specifically mentioned.  

He adds, “Where any close family member is excluded, it is advisable to record clear reasons in the Will or in a separate letter to reduce allegations of oversight, coercion or undue influence. Witnesses should also be carefully chosen, preferably trustworthy persons who are independent and capable of confirming the proper execution of the Will if required.”

In short, one should not wait to get older to write a Will. As one can write a Will as many times as one wants, one should not delay it. Further, to avoid a challenge against the Will, one needs to draft it clearly, get it signed by the witnesses, appoint a trustworthy executor, and maintain the evidence that it has been made under no influence. 

Check here to know about the video Will that can be used to support the authenticity and validity of the last Will in case of challenge.

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