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Can a property be transferred through a Will, and can it be challenged in court?

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(@Ashi Tomar)
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Sir, is a Will enough to transfer property, or can it be questioned legally?

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Legallyne
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Yes, under Indian law, a property can be legally transferred through a Will. A Will is a testamentary document executed by a person (the testator) declaring their intention regarding the distribution of their self-acquired or personal property after their death. The Indian Succession Act, 1925 governs the execution, validity, and interpretation of Wills in India, except for Muslims, who are governed by their personal laws.

A Will becomes effective only after the death of the testator. It can be registered under the Indian Registration Act, 1908, though registration is not mandatory. However, registration serves as strong legal evidence and reduces the chances of future disputes.

Any person who is of sound mind and not a minor can make a Will. The Will must be:

  • In writing (except for Muslims who may make an oral Will under certain circumstances),
  • Signed by the testator,
  • Attested by two or more witnesses, each of whom has seen the testator sign or affix their mark to the Will.

A testator can transfer property—movable or immovable—through a Will to any person or legal entity of their choice. The property transferred can include houses, land, bank accounts, jewellery, shares, etc.

However, while a Will is legally valid, it can be challenged in court by any interested party or heir who believes the Will is fraudulent, fabricated, obtained under coercion, undue influence, or lacks proper execution. Grounds on which a Will can be challenged include:

  1. Lack of Testamentary Capacity: If it is alleged that the testator was not of sound mind or was mentally incapacitated at the time of making the Will.
  2. Undue Influence: When it is claimed that the Will was made under pressure, coercion, or manipulation, particularly by someone who stood to benefit from it.
  3. Fraud or Forgery: If the signature on the Will is forged or the Will was drafted fraudulently without the testator’s consent.
  4. Suspicious Circumstances: If the Will deviates drastically from the normal course of succession or excludes legal heirs without reason, courts may examine it with greater scrutiny.
  5. Improper Execution: If the Will is not signed or not attested by two witnesses as required under Section 63 of the Indian Succession Act, it may be declared invalid.

To prove a Will in court, especially in the case of disputes, the attesting witnesses may be summoned to verify the execution and signature. In certain cases, probate (judicial certification of the Will) is required—especially in the cities of Mumbai, Chennai, and Kolkata—for Wills involving immovable property.

In practice, disputes over Wills are common in cases where:

  • The testator excluded certain heirs without explanation.
  • There is more than one Will, raising questions about which is valid.
  • The Will was created shortly before the testator’s death or when they were medically unwell.

Courts carefully examine such matters and often lean on medical records, witness testimonies, handwriting experts, and surrounding circumstances to determine the validity of the Will.

Hence, while a property can indeed be transferred through a Will, its legitimacy is always subject to judicial scrutiny if challenged.

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