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

Mr. Anand Kumar, an elderly resident of Vikaspuri, was recently shocked to discover a registered will purportedly executed by him. The will, complete with his photograph and the official seal and signatures of the Sub-Registrar, bequeathed his entire property to his son, Mr. Rohan Kumar. Mr. Anand Kumar has had a strained relationship with Rohan for years and asserts that he never intended to make such a will. While he vaguely recalls being taken by Rohan to a government office for what he was told was a ‘pension formality’ which involved getting a photograph taken, he has absolutely no recollection of signing a will or understanding its contents.

This situation raises a critical question: how can a registered will be created without the testator’s conscious consent? While the registration process is designed to ensure authenticity, it is not foolproof. The Sub-Registrar’s primary duty is to verify the identity of the person executing the document and to ask if they have signed it. However, they may not delve deeply into the contents or ascertain if the testator fully comprehends the legal implications, especially if the person is elderly or vulnerable. The testator might be tricked into signing the document under a false pretext, or the document’s contents could be misrepresented to them. Such an act could amount to fraud or undue influence.

Advice in such cases

• Secure the Document: If possible, obtain a certified copy of the registered will from the Sub-Registrar’s office. This will be crucial evidence.

• Gather Evidence: Collect all possible evidence to prove your case. This could include medical records indicating your state of mind, letters, emails, or witness testimony from other family members or friends who can attest to the strained relationship with the beneficiary.

• Do Not Delay: Time is of the essence. The longer you wait, the more difficult it may become to challenge the will successfully.

• 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

Disputes concerning wills are primarily governed by civil law, with potential criminal implications.

• The Indian Succession Act, 1925: This is the principal law governing wills. Section 61 states that a will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. Section 63 lays down the rules for the execution of a will, requiring the testator to sign or affix their mark in the presence of two or more attesting witnesses.

• The Bharatiya Nyaya Sanhita, 2023 (BNS): If elements of forgery or cheating are present, criminal law can be invoked. Section 334 of the BNS deals with forgery, and Section 318 deals with cheating and dishonestly inducing delivery of property. These actions can lead to a parallel criminal investigation.

• The Registration Act, 1908: This Act governs the process of registering documents. While registration adds a presumption of genuineness, this presumption is rebuttable with strong evidence of fraud or undue influence.

If you are the complainant

If you are in Mr. Anand Kumar’s position and believe a will has been fraudulently created in your name, you are the complainant (or plaintiff in a civil suit).

• File a Civil Suit: The primary remedy is to file a suit for declaration and cancellation in a competent civil court. You would ask the court to declare the will null and void because it was executed under fraud or undue influence.

• File for an Injunction: Simultaneously, you can file an application for a temporary injunction to prevent the beneficiary from acting upon the will, such as trying to sell or transfer the property, while the case is pending.

• Consider a Criminal Complaint: If there is clear evidence of forgery or cheating, you can file a police complaint or a private complaint before a Magistrate under the relevant sections of the BNS.

• 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

If you are a rightful heir who has been disinherited by a fraudulent will made in someone else’s favour, you are a victim.

• Challenge the Probate: When the beneficiary of the suspicious will applies for probate (court certification of the will’s validity), you have the right to object and file a caveat. This turns the probate proceedings into a contested suit.

• Prove the Suspicious Circumstances: The burden will be on the beneficiary to prove the will is genuine. You must present evidence to the court highlighting all the suspicious circumstances surrounding its execution, such as the testator’s poor health, lack of mental capacity, unnatural dispositions, or the beneficiary’s active role in making the will.

• 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

The police generally treat will disputes as civil matters. If you approach them with a complaint of a fraudulent will, they may be hesitant to register an FIR immediately. They will often advise you to seek a remedy from the civil court first. Their involvement becomes more direct and proactive if there is strong prima facie evidence of a cognizable criminal offence like forgery of signatures, impersonation, or criminal intimidation. Even if a criminal case is registered, the proceedings in the civil court regarding the validity of the will are paramount and will ultimately determine the inheritance rights.

FAQs people normally have

What evidence is required?

To successfully challenge a will on grounds of fraud or undue influence, you need strong and convincing evidence. The burden of proof is high. Key evidence includes:

• Medical Evidence: Doctor’s certificates and medical records showing the testator’s physical and mental health at the time of the will’s execution.

• Testimony of Witnesses: The testimony of the attesting witnesses is crucial. They can be cross-examined to see if the proper procedure was followed. Other witnesses like family, friends, or neighbours can testify about the relationship between the testator and the beneficiary.

• Expert Opinion: If forgery is alleged, a report from a handwriting expert can be submitted.

• Circumstantial Evidence: Evidence of the beneficiary’s involvement in the will’s preparation, unnatural exclusion of other natural heirs, and the testator’s dependency on the beneficiary can create suspicion.

How long will the investigation take?

Contesting a will is a lengthy process. A civil suit can take several years, often between 5 to 15 years, to be decided by a trial court. After that, the losing party has the right to appeal to the High Court and subsequently to the Supreme Court, which adds more years to the litigation. A parallel criminal investigation under the Bharatiya Nagarik Suraksha Sanhita (BNSS) will have its own timeline, but the civil court’s final decision on the will’s validity will be the determining factor for property inheritance.

Advocate Sudhir Rao, Supreme Court of India