How to Challenge a Will in Delhi

A will can be challenged in Delhi in three ways: by filing objections when someone applies for probate, by applying to revoke a probate that has already been granted, or, where nobody has sought probate, by filing a civil suit for a declaration that the will is not valid. The usual grounds are that the will was not properly signed and attested, that the testator lacked the mental capacity to make it, that it was obtained by fraud, coercion or undue influence, that it is forged, or that suspicious circumstances surround it which its supporters cannot explain. Time limits apply to every route, so the challenge should begin as soon as the will is relied on against you.

Why the route matters in Delhi

Probate of a will made by a Hindu, Sikh, Jain or Buddhist is not compulsory in Delhi. Section 213 of the Indian Succession Act, 1925 makes it compulsory only for wills connected with certain former presidency towns and territories. So a beneficiary may never apply for probate, and may instead rely on the will to seek mutation, to resist a partition suit, or to sell the property. That shapes how the will is challenged:

• If a probate petition is filed, objections are made in that proceeding.
• If probate has already been granted, an application for revocation is made under Section 263.
• If no probate is sought, the challenge is a civil suit for declaration, often with an injunction, or a defence and counter-claim in a partition suit already filed.

A mutation authority generally does not decide whether a will is genuine. If you object at the mutation stage, expect to be told to go to a civil court.

The grounds

1. The will was not properly executed or attested

Section 63 of the Indian Succession Act requires the testator to sign or put a mark on the will, and at least two witnesses to attest it, each having seen the testator sign or received the testator’s acknowledgment of the signature, and each signing in the testator’s presence. In court the will is proved by calling at least one attesting witness under Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, which replaced Section 68 of the Indian Evidence Act. Weak or contradictory evidence from the attesting witness about who was present and who signed when is a common reason a will fails.

2. The testator lacked testamentary capacity

Under Section 59, a person of sound mind who is not a minor may make a will. A person cannot make one while in a state of mind, from illness, intoxication or any other cause, in which they do not know what they are doing. Medical records from around the date of the will, hospital admissions and evidence of the testator’s day-to-day condition are central here.

3. Fraud, coercion or undue influence

Section 61 makes a will, or any part of it, void if its making was caused by fraud or coercion, or by importunity that takes away the testator’s free agency. Ordinary persuasion, affection or requests do not invalidate a will, as the section’s illustrations make clear. The question is whether the testator was still free to decide.

4. Forgery

A forged signature or a substituted page makes the will no will at all. These cases usually turn on comparing the disputed signature with admitted signatures of the testator, sometimes with the opinion of a forensic document examiner, and on the original document itself.

5. Suspicious circumstances

Even where execution is formally proved, the court looks at the surrounding facts. Recurring examples include:

• a shaky or unusual signature;
• a testator who was gravely ill or dependent on the beneficiary;
• the main beneficiary taking a prominent part in drafting the will, choosing the witnesses or arranging the signing;
• the unexplained exclusion of close family members;
• a will that surfaces late, or is inconsistent with the testator’s earlier statements or documents.

Leaving out an heir is not by itself a ground, because a will exists to change how property would otherwise pass. It becomes significant when it is unexplained and sits with other doubtful facts.

Who has to prove what

In H. Venkatachala Iyengar v. B.N. Thimmajamma (1959) the Supreme Court set out the approach courts still follow:

• The propounder, the person relying on the will, must prove that the testator signed it, that it was attested as the law requires, and that the testator had a sound disposing mind and knew what the will contained.
• The propounder must also remove suspicious circumstances to the court’s satisfaction.
• The person alleging fraud, coercion or undue influence must prove it.

Registration helps the propounder only a little. Registering a will is optional, and the proviso to Section 67 that excuses calling an attesting witness for registered documents expressly excludes wills.

Step by step: objecting in probate proceedings

1. Watch for the citation or notice. When a probate petition is filed, the court can issue a citation under Section 283 to everyone with an interest, displayed at the court and the Collector’s office and published as it directs, usually in a newspaper. Legal heirs are usually served directly.
2. Lodge a caveat. Under Section 284, a caveat can be lodged with the court. You must show an interest in the estate, typically as an heir who would inherit if the will failed, or as a beneficiary under another will.
3. File objections with an affidavit, setting out each ground and the facts behind it.
4. The case becomes a suit. Under Section 295, once there is a contest the proceeding takes the form of a regular suit, with the petitioner as plaintiff and the objector as defendant. Issues are framed and both sides give evidence.
5. Evidence and cross-examination. The attesting witness, the scribe, doctors and family members are commonly examined. Cross-examination of the attesting witness is often decisive.
6. Judgment. The court grants or refuses probate. An appeal lies to the High Court.

In Delhi a probate petition may be in the district court or, under Section 300, on the original side of the Delhi High Court, and the objection is filed wherever the petition is pending.

Revoking a probate already granted

Section 263 allows a grant to be revoked for “just cause”, which includes proceedings defective in substance, a grant obtained by fraud or by concealing something material, a grant made without notice to people who should have been cited, or a forged or later-revoked will. The Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur (2008) held that Article 137 of the Limitation Act, 1963, which gives three years from when the right to apply accrues, applies to applications in these proceedings. When that period begins can be argued on the facts, so a revocation application should be filed promptly.

Filing a civil suit

Where nobody has applied for probate, an heir can file a suit for a declaration that the will is not genuine or not valid, usually with an injunction to stop the beneficiary selling or parting with the property, and often with a claim for partition. Suits valued up to two crore rupees go to the district courts, and those above it to the Delhi High Court’s original side.

Limitation. A suit for a declaration generally must be filed within three years from when the right to sue first accrues, under Article 58 of the Limitation Act. Courts usually look to when the will was set up or relied on against the plaintiff, but this is fact-specific. A suit for possession of immovable property based on title has a longer period of twelve years under Article 65, running from when the defendant’s possession becomes adverse. Do not rely on the longer period without advice.

Documents to gather

• A copy of the disputed will, and any earlier will
• The death certificate and a family tree
• Medical records and prescriptions from the months around the date of the will
• Admitted signatures of the testator from bank, property or official documents
• Correspondence showing the testator’s intentions or relationships
• Any probate petition, citation or notice you have received

What to expect

A contested probate or will suit in Delhi commonly takes several years, and an appeal adds more. Many such cases settle through mediation or a family settlement once the evidence is clearer. These are ranges, not promises, and no lawyer can promise that a will will be upheld or set aside.

For the documents that apply when a will is not disputed, see our guide on probate vs succession certificate vs legal heir certificate, and for bank money and shares, the succession certificate process. Where the dispute is over shares in a house, see how a partition suit works in Delhi.

Our succession lawyers in Delhi act both for those challenging a will and for those proving one. Call 99115 44811 or write to manujalawyers@gmail.com. This post is general information, not advice on your case.