By July 26, 2012 October 7th, 2014 Blog

Question:  If a Will is made, then can it be still contested in the court of law? And, if the Will is probated then is it still open to be contested in court? Last, is a holographic will full-proof from being contested in court?

Mr. Gerard Colaco: Anything can be contested in a court of law. Even a probate can be contested. The main issue is whether the contest will be successful. A probate is nothing but an order issued by a lower court of competent jurisdiction, confirming a will, after examining and investigating it. If any party is dissatisfied with the probate order, it can be appealed against before the district court (if applicable), the high court and even the Supreme Court, subject of course to the appeal being admitted at the higher levels.

Neither a registered will nor a holographic will offers immunity from litigation. A registered will only guard against loss of the original will. When a will is registered, the copy filed with the sub-registrar’s office, takes the place of the original will in case the original will is lost.

A holographic will, where every word of the will on every page has been handwritten by the testator, and where every page has been signed by the testator and then properly witnessed, will be considered by the court as more authentic than a will which has been typed out or computer printed and signed. That does not mean it cannot be challenged.

The normal grounds of challenge are that the will is fake, that it was executed by the testator under undue influence or coercion, that it has been tampered with, that the testator was of unsound mind or under the influence of alcohol or other consciousness-altering substances at the time of the execution thereof, etc.

Having said this, a will properly drafted, signed on each page and witnessed by a minimum of two witnesses is difficult to dispute. I can give a few suggestions for strengthening a will. One is to have two witnesses who are considerably younger than the testator. Second, if any immediate family member, like a child of the testator, is being excluded or if one of many legatees is being favoured more than the others, it is an excellent idea for the testator to state the reasons for this in the will.

It is also good to have a third witness to the will, who should be the family physician or advocate of the testator, because in case of a dispute, such professionals would make credible witnesses in proving both the will and the capacity of the testator.

Finally, regardless of whether there are two or three witnesses, it is good for the testator and the witnesses to sign the will before a notary. From my experience, let me tell you that a correctly drafted, signed and witnessed will is very difficult to challenge successfully in a court of law.

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