WHAT IS THE PROCEDURE FOR CHALLENGING PROBATE GRANTED IN

FAVOUR OF A PERSON, BY ANOTHER LEGAL HEIR AND WHAT CAN BE THE

GROUNDS OF CHALLENGE FOR THE SAME.

The right to challenge a Will, or the right to challenge the grant of probate, comes from the
Indian Succession Act, 1925 (Act). The Act confers on persons with an "interest" in the
estate of the testator seeking to challenge the validity of the Will, the right to file a caveat
against the grant of probate. This right is available to any individual with a "caveatable
interest".1 While the Courts have expressed conflicting views on the interpretation of the
term, the common understanding is that anyone with even the slightest interest in the estate of
the testator, or anyone whose rights are prejudiced by the grant of probate, is considered to
have a caveatable interest and is entitled to oppose such a grant. This covers the family of the
testator, namely the spouse, children and mother who would be 'Class 1 heirs'. At a wider
level, it includes siblings, father and other relatives as 'Class 2', etc. Other parties considered
to have a caveatable interest include creditors, business partners, employees etc – hence, the
ambit of people who may potentially challenge the estate is extremely broad.

When someone with a caveatable interest challenges 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 grant of probate, is the plaintiff. The burden of proof that the
Will is valid is on the party that applied for a probate (namely, the executor of the Will).

The Supreme Court of India has, in several cases, laid down the principle that a mandatory
provision in a statute or a statutory right can be waived if the same is aimed to safeguard the
interest of an individual and has not been conceived in public interest. 2 The right to oppose
the grant of probate is essentially the right of individuals to assert their own 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 accrues only to the individual and not to
the public. As such, in terms of the test laid down by the Supreme Court, it is possible to
waive the right to oppose the grant of probate by an agreement.

For example, in Bharat Kumar Amritlal Sayani & Anr. v. Jayantilal Kalidas Sayani & Ors 3,
the High Court of Calcutta did recognize that it is legally permissible to waive the right to
challenge a Will. In the said case, the heirs who had previously signed a declaration stating
1
Shri Jagjit Singh and Ors. v. Mrs. Pamela Manmohan Singh (2010) 5 SCC 157
2
Krishan Lal v. State of J & K 1994 4 SCC 422
3
(2012) 1 CALLT 234 (HC)
that they had no objection to the grant of probate, attempted to challenge the Will
subsequently on procedural grounds. It was held that they had waived their rights to
challenge the Will, and therefore the Will was declared valid. Hence, there is already one
strong precedent of this in the Indian system.

what is the procedure for challenging probate granted in favour of a person, by another legal
heir and what can be the grounds of challenge for the same.

 A will containing any element of fraud, coercion or undue influence can be

challenged:

A will or any part of the will, the making of which has been caused by fraud, coercion, undue
influence is bad in the eyes of the law. It is well-settled law that once the execution of a will
is proved, the burden to prove that it was fabricated or manufactured or was obtained by
committing fraud, coercion or undue influence is upon the shoulder of objector of such will.
Fraud can be said to be a willful act on the part of anyone, where another is sought to be
deprived of illegal means of what he is entitled to.

 A will containing any element of suspicious nature can be challenged:

Wills having suspicious nature such as,

 Execution of two wills at a time, the first being designed vaguely and the other
supplementing it. Or,
 Purchasing of number of stamps for writing out the will, or,
 Too many thumb impressions, thereby confusing all with one another,
 Giving the property to someone who not remotely close to the testator,
 When the will is was executed in the hospital, and the same was not mentioned in
the will,

 Lack of due execution:

A will must be made by the testator and duly signed by him. Signature or thumb impression
of the testator is not the only requirement. Along with the testator, the will must contain the
signature or thumb impression of two witnesses, witnessing that they will belongs to the
testator. If any if these is not present, there is a lack of due execution in the will and the same
can be challenged in the court of law.

 Lack of testamentary intention:

The wordings used in the will is to be followed religiously as it is the only desire left of the
testator as to what is to be done with his property. It is the desire of the testator which is to be
executed. If the will contains any element which shows that, any provision made in the will
might be against the testamentary intention of the testator, the same can be challenged in the
court of law.

 Lack of testamentary capacity:

The testator while making a will

1. shall understand the nature of the act and its effects;

2. shall understand the extent of the property of which he is disposing;
3. shall be able to comprehend and appreciate the claims to which he ought to give
effect and,
4. that no disorder of the mind shall poison his affections, pervert his sense of right,
or prevent the exercise of his natural faculties – that no insane delusion shall
influence his will in disposing of his property and bring about a disposal of it
which, if the mind had been sound, would not have been made.

HOW TO CHALLENGE A REGISTERED WILL IN AN INDIAN COURT?

Procedure to be followed:

Step 1 Filing of the suit

The registration of case with the appropriate seat under the civil jurisdictional court. Different
Indian states have different nomenclature of courts where matters relating to registration of
documents are filed under section 18 of the Registration Act. Different courts have different
form number for matter relating to registration of instruments.
Step 2 Issuing of Vakalatnama

Through Vakalatnama, a person gives all the authority to a lawyer to represent on their
behalf. No tax is levied on the paper of vakalatnama, but nowadays various high courts have
started to issue stamp papers of various denomination.

Step3 Paying of requisite court fee

In Maharashtra, for example, a court fee of INR 25 is payable for assets less than INR
50,000; 4% of assets between INR 50,000-2 lakh, and 7.5% for assets over INR 2 lakh. There
is a ceiling of INR 75,000.

Step 4 Initiation of proceeding and writing of statement

After the case is accepted, the court will release summons issuing notice to the opposite party
to appear before the court. Before such date, the defendant is required to file his “written
statement,” i.e. his defense against the allegation raised by plaintiff, within 30 days from the
date of service of notice, or within such time as given by the court. The burden of proof is on
the person making the allegation on the will to prove that such will is mala fide in nature and
do not represent the intention of the testator.

Step 5 Filing of several documents in support

Legal heir certificates, and other required documents and lastly, listing of witnesses and due
process of hearing.