Yes, a will can be challenged after death, and you have 3 years to do it under the Limitation Act, 1963. How you challenge a will in court depends on whether a grant has already been made on it: before a grant you lodge a caveat, and after a grant you apply to have the grant revoked or annulled for just cause. The 12 year figure often quoted for this belongs to Article 65 of the same Act, which is a suit to recover possession of immovable property based on title.

A registered will is open to the same challenge as an unregistered one, and it is proved in court the same way. Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 lets a registered document be proved without calling an attesting witness, and then takes a will out of that concession by name, so whoever relies on the will must still produce one of the people who attested it.

Where this page sits

Whichever route you are on, the grounds are the same: that the testator was not of sound mind, that the will was made by fraud, coercion or importunity, or that it was not executed the way section 63 of the Indian Succession Act, 1925 requires. Separate guides explain what registering a will proves, who may attest one, and who inherits if a will is set aside.

Related guides:

• What registering a will proves
• Who can witness a will
• Who inherits when there is no valid will
• A will drafted around your family

Who is competent to make a will?

A challenge that says the testator did not know what they were doing starts at section 59 of the Indian Succession Act, 1925, under which every person of sound mind who is not a minor may dispose of their property by will.

A married woman can will away any property she could have disposed of herself while alive. Being deaf, dumb or blind does not disqualify anyone, provided they know what the will does. Someone who is ordinarily insane can make a valid will during an interval in which they are of sound mind, and it is that interval, not the diagnosis, that the court looks at.

Section 62 lets the maker revoke or alter the will at any time while they are competent to dispose of their property by will, so the paper a family is holding after a death is not necessarily the last will the testator made.

What makes a will void?

Fraud, coercion and importunity are the grounds that make a will void, and they reach a single clause as well as the whole document. Under section 61 of the Indian Succession Act, 1925, 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.

A will can also be challenged if it was not signed and witnessed correctly.

The three statutory grounds, and what each one asks the challenger to show:

What are the rules for executing a will?

A will that was not signed and attested the way section 63 requires fails on that ground alone, whatever the testator intended. Section 63 of the Indian Succession Act, 1925 lays down the rules of execution, and they apply to every testator who is not a soldier employed in an expedition or engaged in actual warfare, an airman so employed or engaged, or a mariner at sea.

First, the testator shall sign or shall affix their mark to the will, or it shall be signed by some other person in their presence and by their direction. Second, the signature or mark of the testator, or the signature of the person signing for them, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. Third, the will shall be attested by two or more witnesses.

A will that does not comply with these rules is not valid, so the signature page and the attestation are the first things to read on the document in front of you.

Does registering a will prevent a challenge?

Registering a will does not make it immune to a challenge. Registration proves the contents of the document and gives the family a copy that cannot be lost or destroyed. It proves nothing about whether the testator was of sound mind, and nothing about fraud or coercion.

Under section 18(e) of the Registration Act, 1908, registering a will is entirely optional. Once it is registered, section 57(2) allows copies of the entries in Book No. 3 and its index to be given to the persons executing the document or to their agents. After the death of the executants, but not before, any person applying for such a copy may be given one. Section 57(5) states that all copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents. So if the original has been lost or destroyed, a member of the family can apply after the death for a sealed copy that proves what the will contained.

The government fee for registering a will is Rs 100 in Maharashtra, Rs 600 in Delhi and Rs 200 in Karnataka, and no state charges stamp duty on a will. That fee buys the record and the copy, and it does not change how the will is proved in court.

Under section 67 of the Bharatiya Sakshya Adhiniyam, 2023, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, provided there is an attesting witness alive, subject to the process of the court, and capable of giving evidence.

The proviso to section 67 excuses calling an attesting witness for a registered document, and then adds the words "not being a will". Because the statute takes a will out by name, the person propounding a registered will must still produce an attesting witness, exactly as if the document had never been registered. So if you are holding a registered will, the thing to establish now is whether the people who attested it are alive and can still be reached, because one of them has to be called before the will can be used as evidence.

How long do you have to challenge a will?

The time limit for challenging a will in India is 3 years, and the 12 year figure comes from an article of the Limitation Act, 1963 that deals with a different kind of suit. Article 65 gives 12 years for a suit for possession of immovable property or any interest therein based on title, and time there runs from when the possession of the defendant becomes adverse to the plaintiff.

The Limitation Act names no period for challenging a will. Because no article names a will, the residual articles apply, and both of them give 3 years.

Article 137 covers any other application for which no period of limitation is provided elsewhere in the Division, and it gives 3 years from when the right to apply accrues. That is the period for an application to revoke a grant under section 263 of the Indian Succession Act, 1925.

Article 59 covers a suit to cancel or set aside an instrument or decree, and it also gives 3 years. That period begins when the facts entitling the plaintiff to have the instrument cancelled first become known to them.

Section 3(1) of the Limitation Act, 1963 requires that every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence, so nobody on the other side has to raise the point for a late application to fail. Calculate your deadline from the day your right to apply accrued if you are attacking a grant, or from the day you learned the facts if you are asking a court to set the will aside.

When does the limitation clock start in cases of fraud?

Where the will was forged, or where a later will was kept from you, the 3 years may start running long after the death. Section 17 of the Limitation Act, 1963 states that where a suit or application is based upon the fraud of the defendant or their agent, or where the knowledge of the right or title on which it is founded is concealed by the fraud of any such person, the period of limitation does not begin to run until the applicant has discovered the fraud or could with reasonable diligence have discovered it. An heir who was deliberately kept in the dark is therefore not shut out by a period that ran while they knew nothing, and the date worth recording is the day the facts came to light.

How do you challenge a will before a court grant is made?

If someone has gone to court on the will and no grant has been made yet, the step open to you is a caveat. The Act does not list who can challenge a will. Anyone who claims an interest in the estate can lodge a caveat. Under section 283(1)(c) of the Indian Succession Act, 1925 the District Judge or District Delegate may issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings, and section 284 puts no further qualification on who may lodge a caveat. The judge may also examine the petitioner in person upon oath and require further evidence of the due execution of the will.

Under section 284, caveats against the grant may be lodged with the District Judge or a District Delegate. You can lodge your caveat with either the District Judge or a District Delegate.

Schedule V of the Act provides the specific form of the caveat, which reads: "Let nothing be done in the matter of, the estate of A. B., late of , deceased, who died on the day of at , without notice to C.D. of"

Section 285 gives that form its effect: once a caveat has been entered, no proceeding shall be taken on the petition for the grant until after such notice to the person who entered it as the court may think reasonable. Lodging one therefore keeps the grant from being made without you being told.

Can a will be challenged after a court grant is made?

A will can be challenged after death even where the court has already made a grant, and at that stage the application is to have the grant itself revoked or annulled. Section 263 of the Indian Succession Act, 1925 allows that for just cause, and the Explanation to the section supplies a closed list of five circumstances that constitute just cause:

1. The proceedings to obtain the grant were defective in substance.
2. The grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case.
3. The grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, even if that allegation was made in ignorance or inadvertently.
4. The grant has become useless and inoperative through circumstances.
5. The person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of the Act, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.

The illustrations to the section include a grant made without citing parties who ought to have been cited, a will that was forged or had been revoked, and a later will discovered after the grant was made. The clock on this application is the 3 years in Article 137, counted from the day your right to apply accrued.

How do you prove a will in court?

Whoever asks a court to act on the will has to prove that it was executed, and the rules of proof are in the Bharatiya Sakshya Adhiniyam, 2023. It came into force on 1 July 2024 and its rules apply in every court proceeding, including the ones already running when it started.

Under section 67 of the BSA, a will cannot be used as evidence until you call at least one attesting witness to court, provided a witness is alive, can be reached by the court's process and is capable of giving evidence. A will must be attested by two witnesses, so it falls under this rule.

If no attesting witness can be found, section 68 applies. In that situation, it must be proved that the attestation of at least one attesting witness is in their handwriting, and that the signature of the person executing the document is in the handwriting of that person.

What happens if the will is set aside?

When a court sets a will aside, the estate does not go to whoever brought the challenge. It is distributed as though the deceased had died intestate, which means without a will, and the shares are then fixed by statute.

For Hindus, Buddhists, Jains, and Sikhs, that distribution is governed by the Hindu Succession Act, 1956. Section 8 sets out the rules for a male Hindu dying intestate. The property devolves firstly upon the heirs being the relatives specified in Class I of the Schedule. Secondly, if there is no heir of Class I, then upon the heirs being the relatives specified in Class II of the Schedule. Thirdly, if there is no heir of any of the two classes, it goes to the agnates of the deceased, and lastly to the cognates.

Section 15 sets out the rules for a female Hindu dying intestate. The property devolves firstly upon the sons and daughters, including the children of any pre-deceased son or daughter, and the husband; secondly upon the heirs of the husband; thirdly upon the mother and father; fourthly upon the heirs of the father; and lastly upon the heirs of the mother.

What makes a will hard to challenge?

If you are making a will rather than contesting one, the work that makes it hard to challenge is done while it is being signed and witnessed. The testator has to be of sound mind and acting without coercion or fraud, and the document has to be executed exactly as section 63 of the Indian Succession Act, 1925 requires. That means the clear signature or mark of the testator, and the attestation of two or more witnesses who saw the testator sign and who each signed in the testator's presence.

A challenge under section 263 to revoke a grant, or a suit to set the instrument aside, is answered by the people who attested the will, so keep a note of who they are and where they can be found. Registering the will adds a public record of what it said, and it does not remove the requirement to call one of those witnesses.

How does WillJini make a will that holds?

A WillJini lawyer drafts the will, and the execution follows section 63 to the letter, because that is where a challenge usually lands. The lawyer takes your instructions on a video or audio call, drafts the clauses that say who receives what and who carries the will out as your executor, and revises the draft with you until you are satisfied with it. One person stays with the file from the first call to the signature, and a WillJini lawyer calls you back within 24 hours.

If you also want the government's own record of what the will said, the registration service books the Sub-Registrar appointment for you and takes you through it.

FAQs

Can a registered will be challenged in court?

Yes, and registration does not narrow the grounds of a challenge. Registering a will under the Registration Act, 1908 is entirely optional, and it removes no ground on which the will can be attacked. Registration proves the contents of the document and gives the family a copy, and it does not prove that the testator was of sound mind or acting free of coercion. The proviso to section 67 of the Bharatiya Sakshya Adhiniyam, 2023 excludes wills by name, so an attesting witness must still be called to prove a registered will exactly as for an unregistered one.

How many years do you have to challenge a will?

You have 3 years, under one of two articles of the Limitation Act, 1963 depending on the step you are taking. Article 137 gives 3 years from when the right to apply accrues for an application to revoke a court grant. Article 59 gives 3 years for a suit to cancel or set aside an instrument, running from when the facts entitling you to have it cancelled first become known.

Is the limitation period 12 years for challenging a will?

No, the 12 year period belongs to Article 65 of the Limitation Act, 1963, which governs suits for possession of immovable property based on title and runs from when the defendant's possession becomes adverse to the plaintiff. It is not the limitation period for challenging a will, and under section 3(1) a late application is dismissed even where the other side never pleads limitation.

What grounds make a will void?

Under section 61 of the Indian Succession Act, 1925, a will or any part of a will is void if its making was caused by fraud, coercion, or by such importunity as takes away the free agency of the testator. Section 59 also requires the testator to be of sound mind and not a minor.

How do you stop a court from acting on a challenged will?

You can lodge a caveat with the District Judge or a District Delegate under section 284 of the Indian Succession Act, 1925. Schedule V provides the exact form for the caveat. Under section 285, once a caveat is entered, no proceeding shall be taken on a petition for a grant until reasonable notice is given to the person who entered the caveat.

Can you challenge a will after a court has made a grant?

Yes, by applying to have the grant itself set aside. Section 263 of the Indian Succession Act, 1925 allows a grant of probate or letters of administration to be revoked or annulled for just cause. The statutory explanations for just cause include proceedings that were defective in substance, grants obtained fraudulently by false suggestions or concealment, and grants obtained by untrue allegations of essential facts. Article 137 of the Limitation Act, 1963 gives 3 years for that application, from when the right to apply accrues.

What happens to the property if the will is void?

The estate is treated as if the person died intestate. For Hindus, Buddhists, Jains, and Sikhs, the Hindu Succession Act, 1956 applies. Under section 8, a male Hindu's property devolves firstly upon Class I heirs, then Class II heirs. Under section 15, a female Hindu's property devolves firstly upon her children and husband, then the husband's heirs, and then her parents.

Do you need a witness to prove the will during a challenge?

Yes, an attesting witness has to be called. Under section 67 of the Bharatiya Sakshya Adhiniyam, 2023, the will cannot be used as evidence until at least one attesting witness has been called to prove its execution, if a witness is alive and capable of giving evidence. If no attesting witness can be found, section 68 requires proof that the attestation of at least one witness is in their handwriting, and that the signature of the person executing the document is in the handwriting of that person.