If you are stuck in such a situation, here is what to do.

Mr. Alok and his sister, residents of a quiet neighbourhood in Jaipur, are concerned about their elderly father, a retired civil servant. While their father is mentally sharp and in good health, they worry that a distant relative or an acquaintance might try to create a fraudulent will to usurp their ancestral property. Their father, confident in the legal system, believes that the succession will proceed smoothly through the legal heir certificate process and dismisses their fears about a forged will. This has left the siblings anxious about the potential for future legal battles and the security of their inheritance.

Advice in such cases

While the apprehension of a fraudulent will being created by a third party is valid, there are robust legal safeguards to prevent and challenge such acts. The standard process of succession through a legal heir certificate is indeed the default when a person dies without a will (intestate). However, a valid will always overrides intestate succession laws.

• Persuade the parent to create a registered will. While an unregistered will is also valid, a registered will carries a higher presumption of genuineness as it is executed in the presence of a Sub-Registrar.
• Ensure the will is properly executed as per the Indian Succession Act, 1925, which requires the testator’s signature in the presence of two attesting witnesses, who must also sign in the testator’s presence.
• Keep the original will in a secure place, like a bank locker, and inform a trusted person about its existence and location.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

Dealing with a forged will involves both criminal and civil law. The primary laws applicable are:

• Bharatiya Nyaya Sanhita (BNS), 2023: The act of creating a fake will constitutes forgery.
  • Section 334 of BNS: Defines forgery as making any false document or electronic record with the intent to cause damage or injury, or to support any claim or title.
  • Section 336 of BNS: Specifically punishes the forgery of a will, which is considered an aggravated form of forgery, with imprisonment for life or for a term which may extend to ten years, and a fine.
  • Section 318 of BNS: Can be invoked for cheating and dishonestly inducing delivery of property.
• Indian Succession Act, 1925: This Act governs the rules for wills and succession.
  • Section 63: Lays down the rules for the execution of unprivileged wills, which is crucial for proving a will’s validity.
• Bharatiya Sakshya Adhiniyam (BSA), 2023: This law deals with the evidence required to prove or disprove facts in court.
  • Sections 61 to 68: Detail how documents, including wills, must be proved in court. Proving the signatures of the testator and witnesses is paramount.

If you are the complainant

If a third party presents a will that you believe is forged, you are the complainant. Your course of action would be:

• File a Police Complaint: Immediately file a First Information Report (FIR) at the local police station against the person who has produced the forged will, alleging offences of forgery (Section 336 BNS) and cheating (Section 318 BNS).
• Challenge the Will in Court: The legal heirs must challenge the validity of the will in the appropriate civil court or probate proceedings. You will need to file a suit for declaration that the will is forged, null, and void.
• Oppose Probate: If the beneficiary of the forged will applies for probate (a court’s certification of a will’s authenticity), you must file a caveat and objections to contest it.
• Gather Evidence: Start collecting all possible evidence to prove the forgery, such as specimen signatures of your parent, details of their medical condition at the time the will was allegedly made, and any other suspicious circumstances.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

The primary victims of a forged will are the rightful legal heirs who are wrongfully deprived of their inheritance. The deceased person is also a victim as their true intentions are subverted.

• Act Swiftly: Do not delay in taking legal action once you become aware of the fraudulent will. Any delay can be used against you in court.
• Burden of Proof: In a probate case, the person presenting the will has the initial burden to prove its genuineness. However, if there are suspicious circumstances, the burden shifts heavily onto them to dispel all doubts.
• Assert Your Rights: As a legal heir, you have an inherent right to the property under succession law if there is no valid will. Your case in court will be to establish that the will presented is not valid, thereby restoring your rights.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

Police action in cases of will forgery can be cautious. Initially, they may view the matter as a civil property dispute. However, if you present clear grounds for suspecting a criminal act, they are obligated to act.

• Registration of FIR: Based on your complaint and preliminary evidence, the police will register an FIR under the relevant sections of the BNS.
• Investigation: The Investigating Officer (IO) will conduct an investigation as per the procedures laid down in the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. This includes recording statements of all parties, seizing the disputed will, and collecting specimen signatures.
• Forensic Analysis: The most crucial step is sending the disputed will and the specimen/admitted signatures to a Forensic Science Laboratory (FSL) for a handwriting expert’s opinion.
• Arrest: If the forensic report confirms forgery and there is sufficient corroborating evidence, the police may arrest the accused persons.

FAQs people normally have

• Is it easy to make a fake will?
  

  While someone can physically create a fake document, getting it legally accepted is very difficult. It must withstand scrutiny in court, including forensic examination and the testimony of witnesses.

  
  
• What if the attesting witnesses are also fake or colluding?
  

  This is common in forgery cases. Their testimony can be discredited during cross-examination. If they are untraceable or give inconsistent statements, it raises a major red flag about the will’s authenticity.

  
  
• Does a registered will prevent all fraud?
  

  Registration adds a strong layer of authenticity but is not absolute proof. A will can still be challenged on grounds like coercion, undue influence, or lack of mental capacity of the testator, even if it is registered.

  
  
• What if my parent is forced to sign a will?
  

  A will made under coercion, fraud, or undue influence is invalid. If you can prove that your parent was not acting of their own free will, the court will set aside the will.

  
  

What evidence is required?

To successfully challenge a forged will, you will need strong evidence, such as:

• Forensic Evidence: A report from a handwriting expert comparing the signature on the will with the deceased’s known, genuine signatures.
• Witness Testimony: The testimony of the attesting witnesses is crucial. If they deny signing the document or their statements are contradictory, it weakens the will.
• Medical Records: Documents proving the testator’s physical or mental state (e.g., severe illness, dementia) at the time of the alleged execution can show they lacked the capacity to make a will.
• Circumstantial Evidence: Any suspicious circumstances, such as the main beneficiary taking an active role in the will’s preparation, the exclusion of all-natural heirs without reason, or the will surfacing long after the death.

How long will the investigation take?

Legal proceedings for a forged will can be time-consuming.

• Police Investigation: A police investigation and the filing of a chargesheet can take anywhere from 6 months to over a year, largely depending on the time taken for the FSL report.
• Court Trial: Both the criminal trial for forgery and the civil case for declaring the will void can take several years to conclude in the trial court. The process can be further extended by appeals to the High Court and the Supreme Court. Patience and perseverance are key.

Advocate Sudhir Rao, Supreme Court of India