This blog, part of M2K Advisors’ Succession Planning Series (#19), takes a practical look at how wills can be contested—and more importantly, how to protect them from being challenged in the first place. It starts with who can legally contest a will and under what circumstances. Then it walks through the legal process of contesting, step-by-step. The most useful part? It clearly maps out six common grounds on which wills are challenged and matches each one with a clear safeguard you can use while drafting or executing the will. These legal insights are especially helpful for anyone looking to avoid inheritance disputes among family members, and to ensure the testator’s wishes are legally secure and enforceable.
Contesting a Will
Contesting a will means legally challenging its validity. It’s not about disagreeing with who got what—it’s about proving that the will doesn’t actually reflect the true intent of the person who made it (the testator).
In India, spouses, children, named beneficiaries, or even those who feel they should have been included, can contest a will. However, this can only be done on valid legal grounds, not emotional ones.
Under the Indian Succession Act, anyone with a stake in the estate can file a caveat—which is a formal request to pause any legal proceeding (like probate) until that person is notified. Once a caveat is filed, the probate petition is no longer a simple procedure. It becomes a civil suit, where:
- The caveator becomes the defendant
- The petitioner (the one who filed for probate) becomes the plaintiff
This shift means the entire will is now open to legal scrutiny and challenge—so unless the will was properly structured and documented, it could be vulnerable.
Steps to Contest a Will
Here’s how the legal process of contesting a will typically works:
1. File a civil suit in the right court
The case must be filed in the appropriate civil court that has jurisdiction over the estate or the deceased’s place of residence.
2. Submit a Vakalatnama
You must authorize a lawyer to represent you by submitting a vakalatnama—a legal document giving your lawyer permission to act on your behalf.
3. Pay the court fee
The amount depends on the size of the estate and jurisdiction. It has to be paid upfront.
4. Notice and response
Once the court accepts the suit, it sends a summons to the opposite party (typically, the petitioner who applied for probate).
It is now the caveator’s responsibility to prove that the will is invalid.
5. Submission of evidence and hearings
You will need to provide:
- Medical records (if claiming mental incapacity)
- Witness depositions
- Forensic evidence (if claiming forgery or signature mismatch)
- Any past versions of the will or related correspondence
After this, the court begins the formal hearing process to determine if the will stands up to scrutiny.
Grounds of contesting a Will and safeguard measures
To protect a will from being contested, you first need to understand the most common grounds used to challenge its validity—and what you can do during the drafting process to counter each of them.
Ground 1: The testator lacked the necessary mental capacity to draft and sign the Will
This is one of the most common challenges, especially when wills are written late in life or after a serious illness. If there’s any doubt about the testator’s mental alertness, the entire will can be thrown out.
✅ Safeguard Measure:
Attach a certificate from a licensed medical practitioner confirming that the testator was of sound mind and fit to make decisions at the time of execution.
This medical note should ideally be dated the same day as the will.
Ground 2: The testator was under influence or coercion to draft the Will
If someone close to the testator—say, a child, caregiver, or sibling—pressured them to write or alter a will, that’s considered undue influence.
✅ Safeguard Measure:
Video record the entire process of reading, signing, and witnessing the will. The video should show:
- The testator reading the will
- Voluntarily signing it
- Both witnesses signing in full view
- A visible timestamp
Keep this recording with the will as future evidence of free will and mental clarity.
Ground 3: The testator intentionally left behind one of the natural heirs while drafting the Will as he was found to be errant
This happens often in Indian families where one child is estranged or deemed irresponsible. But exclusion without context often leads to court challenges.
✅ Safeguard Measure:
Include an explanatory note within the will. It should clearly state:
- Who is being excluded
- Why
- When the decision was taken
This shows the decision was deliberate and thought-through—not the result of manipulation or oversight.
Ground 4: The date of the Will and the date of signing are different
Any mismatch between the dates makes it easy to challenge the will’s authenticity. Courts view it as sloppy or suspicious.
✅ Safeguard Measure:
Make sure the date of execution and date of signing are the same. No exceptions. Every page should carry the same date.
Ground 5: There are multiple Wills and there is confusion as to which Will prevails
If an older will isn’t revoked, or a newer one doesn’t clearly override the previous version, disputes arise—especially if they have different beneficiaries.
✅ Safeguard Measure:
Always add a line in the new will that says:
“I hereby revoke all my previous wills and codicils.”
That one line gives legal clarity and prevents any confusion.
Ground 6: The Will is forged by someone after death
Forgery claims are serious, and they’re easier to make if the will is unregistered and no one else knew about it.
✅ Safeguard Measure:
- Register the will with the relevant sub-registrar.
- Distribute certified copies to the beneficiaries right after signing.
This adds transparency and prevents surprises. It also ensures the beneficiaries are aware of the testator’s decisions in advance.
Other Common Safeguard Measures
Besides the ones linked to specific grounds, here are additional protective steps to make your will stronger and safer:
- Register the Will at the sub-registrar’s office in the city/town where the testator lives.
- Each page of the will must be signed by the testator and at least two witnesses.
- Avoid having any beneficiary act as a witness or executor of the will. This creates a clear conflict of interest.
- The will should be typed—avoid handwritten versions, interlineations, strikethroughs, or overwriting. These are all red flags in probate proceedings.
- Store the original will with a trusted family member, friend, lawyer, or law firm.
- Update the will periodically, especially after acquiring new assets or property.
A will isn’t a “one and done” document. It should reflect your current asset profile and intent. Leaving outdated instructions in your will—even if technically valid—can be a breeding ground for disputes.
Succession Knowledge Series
This blog is part of the larger M2K Advisors Succession Planning Series, which includes 20+ editions covering every stage of estate planning—from intestate succession to taxation of trusts.
If you’ve missed previous editions, you can find them here:
🔗 https://www.m2kadvisors.com
