My Father's Will Leaves Everything to My Brother: How to Challenge a Will in India

Yes, you can challenge a will in India, and the burden starts on the other side of the table. Your brother, as the person relying on the will (the law calls him the propounder), must prove that your father signed it, that two witnesses attested it as Section 63 of the Indian Succession Act, 1925 requires, that he had a sound disposing mind, and that every suspicious circumstance around the document has been explained to the court's satisfaction. A will that cuts out two of three children in favour of the child who lived with the testator is one of the circumstances the Supreme Court has listed since H. Venkatachala Iyengar v B.N. Thimmajamma (13 November 1958) as needing an explanation. You do not have to prove fraud to win.

Part of the NRI succession and inheritance practice at S Jain & Attorneys, Bangalore.

This guide is for a son or daughter in Bengaluru whose father has died and whose sibling has produced a typed will, signed months before the death and witnessed by the sibling's friend and the family doctor, leaving him the house and the bank balance. It covers Hindu, Buddhist, Jain and Sikh families, to whom the will provisions of the Act apply through Section 57 and Schedule III.

Can my father leave everything to my brother and nothing to me?

Yes, if the house and the money were his own. Section 30 of the Hindu Succession Act, 1956 lets any Hindu dispose of by will any property capable of being so disposed of, and its Explanation adds his undivided interest in Mitakshara coparcenary property. Children have no forced share. In Swarnalatha v Kalavathy (30 March 2022) the Supreme Court said a court testing a will does not ask whether the distribution was fair to all the children, and that the exclusion of one natural heir cannot by itself be a suspicious circumstance. Unfairness is not a ground. It is a fact the court weighs with everything else.

The limit is property that was never his to give. If the house was ancestral coparcenary property, you became a coparcener by birth under Section 6(1) as substituted in 2005, and on his death Section 6(3) treats the coparcenary as partitioned with you allotted the same share as a son, so his will carries only his own notional share. And if the will fails, the estate does not go to your brother by default. Section 8 sends it to the Class I heirs, and Section 10 gives the widow, each son, each daughter and the mother one share each.

What makes a will legally valid in India?

A will is valid if it meets Section 63 of the Indian Succession Act and the testator had capacity under Section 59. Nothing else is needed: no stamp paper, no registration, no lawyer, and a typed will is as good as a handwritten one. Section 63 has three rules. The testator signs or affixes his mark, or someone signs in his presence and by his direction. The signature is placed so that it appears intended to give effect to the writing as a will. Two or more witnesses attest it, each having seen the testator sign or received from him a personal acknowledgment of his signature, and each signs in his presence, though the two need not be present together.

Section 59 says every person of sound mind who is not a minor may make a will, and its fourth Explanation adds that no one can make a will while, from intoxication, illness or any other cause, he does not know what he is doing.

Registration is optional under Section 18(e) of the Registration Act, 1908 and adds nothing to validity. If your brother registered the will after the death, which Section 40 allows, get the Sub-Registrar's file. Our guide on how to make a will in India is a useful checklist for spotting what the will in your hands is missing.

What are the grounds to challenge a will in India?

There are six, and they are not alternatives. The first is execution: if the propounder cannot prove through an attesting witness that your father signed and that each witness attested in his presence, the inquiry ends there. The second is capacity under Section 59. The third is Section 61: a will, or any part of it, caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. Importunity is relentless pressure from someone the testator depended on. The fourth is suspicious circumstances, covered in the next section. The fifth is revocation. Under Section 70 a will is revoked only by a later will or codicil, by a writing executed like a will declaring an intention to revoke, or by the testator destroying it with intent to revoke. So an earlier will in favour of all three children survives unless the later will is itself proved. The sixth is forgery, which you should plead only when you have signatures to compare, because that burden is yours.

Key takeaway. You do not have to prove that your brother did anything wrong. Since 1958 the Supreme Court has held that the propounder must prove due execution and, where the circumstances raise doubt, must remove that doubt. A will can fail on unexplained suspicion alone, without any finding of fraud, coercion or forgery.

What your brother has to establish before the court will act on the will:

What are "suspicious circumstances", and who has to explain them?

A suspicious circumstance is any feature of the will or its making that a normal person would not expect in a normal situation, and the propounder has to explain it. The rule comes from H. Venkatachala Iyengar v B.N. Thimmajamma, a three-judge decision of the Supreme Court of 13 November 1958. Where nothing is suspicious, proof of capacity and signature is enough, but the signature may be very shaky and doubtful, the testator's mind may appear very feeble and debilitated, the dispositions may appear unnatural, improbable or unfair in the light of the relevant circumstances, and then the court expects all legitimate suspicions to be completely removed before it accepts the document. The judgment added the point that decides most sibling disputes: where the propounder took a prominent part in the execution of a will that confers substantial benefit on him, that is itself a suspicious circumstance, which he must remove by clear and satisfactory evidence.

Kavita Kanwar v Mrs. Pamela Mehta (19 May 2020), where a daughter propounding her mother's will was refused probate, restated the tests. Suspicious features must be real, germane and valid, not the fantasy of a doubting mind. Its illustrative list: a shaky or doubtful signature, a feeble or uncertain mind, an unfair disposition of property, an unjust exclusion of the legal heirs and particularly the dependants, and an active or leading part in making of the will by the beneficiary. Such suspicion cannot be removed by mere proof of a sound disposing mind and the signature coupled with proof of attestation.

Sardari Lal v Bishan Dass (6 July 2026) applied the same tests to discard a registered will that disinherited the testator's only Class I heir in favour of distant relatives, and put the sequence plainly: proving execution under Section 63 is just the first step, and the exercise is complete only when the propounder satisfies the court's conscience that the testator signed with free will, aware of the contents and understanding the nature and effect of the dispositions. No rule requires a will to give reasons, but where reasons are stated the court may consider whether they are truthful or just moonshine. A typed recital that you were "already provided for" can be disproved, and disproving it counts against the will.

My brother lived with my father and got everything: does that count against the will?

It counts, and it is the strongest fact you have, but it is not enough on its own. Kavita Kanwar shows one side: the unnatural exclusion of the other children, the propounder's active role in the execution which she then tried to play down with vague statements, and the two witnesses contradicting her on material particulars together sank the will. Swarnalatha shows the other. There the parents' wills recorded what the excluded daughter had already received, the father had attested the mother's will, and nobody challenged the signatures or capacity.

So the court will want these questions answered. Who decided that a will should be made, and who called the typist or the lawyer. Who chose the two witnesses. Where was the document kept for six months, and who knew of it. Was it read over to your father in a language he read comfortably. Does the will give a reason for leaving you out, and is that reason true. Did your father go on treating you as his child after signing, in a way that sits oddly with a decision to disinherit you. A brother who answers all of that credibly will usually prove the will. A brother who was in the room, chose the witnesses, kept the paper and cannot say who typed it has a problem that proof of the signature does not cure.

The witnesses are my brother's friend and the family doctor: does that matter?

It matters for cross-examination, not for validity. Section 63 lets any two people attest, and Section 68 of the Indian Succession Act says nobody is disqualified as a witness by interest in the will or by being an executor. Sardari Lal held that nothing turns on the choice of an attesting witness or where he lives unless he was chosen deliberately to prepare a bogus will or did not know the testator. Your brother's friend is therefore not a defect but an entry point: his relationship with your brother, when he first met your father, who asked him to come, what he was told the document was, and whether both witnesses were present together or signed at different times, which both must then describe consistently.

Section 67 of the Indian Succession Act, which makes a bequest to an attesting witness void, is not among the sections Schedule III applies to Hindu wills, so even if your brother had signed as a witness his bequest would survive. His participation would instead feed the suspicious-circumstances inquiry. The doctor is the most important witness for both sides. Your brother will call him to prove execution, and your counsel will ask what he was treating your father for, what he had prescribed in the weeks before the signing, whether he examined him that day, whether he recorded an opinion on capacity anywhere, and why a treating physician came to the house to witness a will rather than to treat a patient. His clinic records, which you can call for in the suit, either support his evidence or contradict it.

My father was 82 and on medication: is that enough to set the will aside?

No. Age is not incapacity and medication is not incapacity, and a case built on nothing more than "he was old and unwell" fails. Section 59 presumes capacity in an adult, Illustration (iii) says a feeble and debilitated person who can still judge how to dispose of his property makes a valid will. The evidence that turns an "old and unwell" case into a capacity case is specific: a diagnosis of dementia or another cognitive condition before the date of the will, sedative or psychoactive medication prescribed around it, a hospital admission or a fall close to the date, and bank instructions or messages from your father in the same weeks that show confusion, or show clarity, because you must be ready for either. Venkatachala Iyengar listed a mind that appears very feeble and debilitated as a circumstance the propounder must remove, so once the medical file is on record the burden of showing that your father knew what he was doing sits with your brother and the doctor who witnessed the will.

Common mistake. Pleading that your father was "not in his senses" without a single medical record. The court treats an unsupported capacity plea as a make-weight, and it costs you credibility on the grounds that had evidence behind them. Get the hospital file, the prescriptions and the pharmacy bills before you file, not after.

Which court do I go to, and what do I file?

Two routes, and who moves first decides which. If you move first, you file a civil suit for a declaration that the document propounded as your father's will is not his last will and does not bind you, for partition and separate possession of your share as on intestacy, and for a permanent injunction against alienation. For a house inside Bengaluru city the court is the City Civil Court: Section 3 of the Bangalore City Civil Court Act, 1979 makes it the principal civil court of original jurisdiction for the city. The Family Court cannot hear this: Section 7 of the Family Courts Act, 1984 confines it to matrimonial matters, disputes between spouses, maintenance, legitimacy, guardianship and custody. Our guide to a property partition suit in India covers the partition side of the case.

If your brother moves first, he petitions for probate, or for letters of administration with the will annexed, under Section 276 of the Indian Succession Act before the District Judge, whose jurisdiction under Section 264 is exercised in the city by the City Civil Court under Section 12 of the 1979 Act. Section 283 lets the judge issue citations to everyone with an interest in the estate. Your answer is a caveat under Section 284, and once you appear to oppose, Section 295 directs that the case proceed as a regular suit with your brother as plaintiff and you as defendant. Since 20 December 2025 he need not take that route at all. Section 213, which barred a legatee from establishing any right under a will without probate, was omitted by the Repealing and Amending Act, 2025, and our post on why probate is no longer mandatory in India explains what changed. If he is already acting on the will, the suit is yours to file.

Court fee decides how expensive the filing is. Under the Karnataka Court-Fee and Suits Valuation Act, 1958, Section 35 charges a partition claim on the market value of the plaintiff's share where his title is denied or he has been excluded from possession, and a fixed slab fee where he is in joint possession, Section 24 charges a declaration on the market value of the property where possession is also sought and on half of it where the consequential relief is an injunction, and Section 35(4) with Section 38 adds a separate fee where cancellation of a document is sought. Whether you were living in the house when your father died therefore changes the fee by a large multiple, so plead the true position on possession, because a wrong averment gets the plaint returned for deficit fee months into the case.

What is the deadline to challenge a will?

Three years. Article 58 of the Schedule to the Limitation Act, 1963 gives three years for a suit to obtain any other declaration, from when the right to sue first accrues, normally the date the will was first set up against you, whether produced to you, filed with the khata office or put to the bank. Article 59 gives the same three years for a suit to cancel or set aside an instrument, and where the property was coparcenary and you sue as a coparcener excluded from it, Article 110 allows twelve years from when the exclusion became known. If your brother files for probate, the caveat under Section 284 can be lodged at any time before the grant, and even after a grant Section 263 allows the court to revoke it for just cause, including a forged or revoked will or a later will discovered afterwards.

Deadline warning. The three-year period for a declaration runs from when the will was first used against you, not from your father's death and not from the day you decided to act. But the date that ends most cases is the date of the sale deed. Once a purchaser is on the title you are litigating against two people instead of one. File first, then negotiate.

Can my brother sell the house or change the khata on the will meanwhile?

He can try, and your job is to put your objection on the record first. The khata office transfers a khata on a will with the death certificate. Write to the office now, with the death certificate, the family tree and your objection, and ask that no transfer be recorded without notice to you. Our guide to khata transfer after the death of the owner in Bengaluru sets out the objection route and the rule that a disputed will has to go to the civil court before mutation. A khata is a tax record, not title.

A sale is the real danger, and two provisions protect you once you have filed. Section 52 of the Transfer of Property Act, 1882 provides that while a suit in which a right to immovable property is directly and specifically in question is pending, no party can transfer the property so as to affect the rights of any other party under the decree, except with the court's leave, and the pendency runs from the date the plaint is presented. Before you file there is no such protection. Order 39 Rule 1 of the Code of Civil Procedure then lets the court grant a temporary injunction where property in dispute in a suit is in danger of being alienated by any party, and our guide on how to get a temporary injunction under Order 39 CPC explains the three tests. For the bank balance, write to the branch with the death certificate and your objection, and ask for the last few years' statements, which also show whether your father was operating the account himself.

How does the court test a will at trial?

By calling the attesting witness. Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, which replaced Section 68 of the Indian Evidence Act from 1 July 2024, provides that a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called to prove its execution. Its proviso, which excuses a witness for a registered document unless execution is specifically denied, does not apply to a will, so your brother must call his friend or the doctor whether or not the will was registered. Section 68 covers the case where no attesting witness can be found. Section 70, which replaced Section 71 of the Evidence Act, allows execution to be proved by other evidence if the witness denies or does not recollect it. Section 72 lets the court compare the disputed signature with any signature admitted or proved to be your father's.

Meena Pradhan v Kamla Pradhan sets out the sequence the trial judge follows. The court considers two things: that the will was executed by the testator, and that it was his last will. At least one attesting witness who is alive and available must be examined, and he must speak not only to the testator's signature but to each witness having signed in the testator's presence. If he proves execution the other need not be called, and if he fails the other available witness has to be called. Where suspicion exists the propounder must remove all legitimate suspicions, and the judicial-conscience test asks whether he knew the contents and acted of his own free will. Because the propounder must prove the will, your brother leads evidence first.

Step by step: what to do in the first ninety days

1. Get a complete copy of the will and note who holds the original. A refusal to show the original is itself a fact for the plaint.
2. Collect the death certificate, the title documents and the bank details, and apply for the family tree certificate from the Nadakacheri.
3. Secure the medical evidence: discharge summaries, prescriptions, pharmacy and insurance records for the last two years, and the registration details of the doctor who witnessed the will.
4. Gather your father's admitted signatures from the same period: bank mandates, cheques, the pension file, earlier registered documents.
5. Write to the khata office, the Sub-Registrar and the bank stating that the will is disputed and asking for notice before any transfer or payment. Keep the acknowledgments.
6. Sign no family settlement, consent affidavit, no-objection or release deed until you have advice.
7. Decide the route with your advocate: a suit for declaration, partition and injunction, or a caveat if a probate petition is already on file. Plead the specific suspicious circumstances, and plead fraud or coercion only where you have evidence.
8. File the suit with an Order 39 application the same day, and at trial let the propounder lead first, cross-examine both witnesses on the day of execution, and prove your own documents before anyone talks settlement.

Indicative timelines and costs

A temporary injunction application in the City Civil Court is usually heard within a few weeks to a few months of filing, and an interim order often decides the practical balance of the case. The suit itself is a matter of years. A contested will trial with two attesting witnesses, a doctor, a handwriting expert and the parties commonly runs three to five years to judgment in the city courts, and a first appeal adds more. The cost heads are the court fee discussed above, which is the largest variable, certified copies from the Sub-Registrar and the hospital, the handwriting expert's fee, and professional fees, which advocates in this field usually quote by stage: notice and injunction, pleadings, trial, appeal. Ask for the fee by stage in writing.

The mistakes that cost siblings the case

The first is signing a "family settlement" in the first weeks, on the assurance that it is a formality. A signed acknowledgment that you accept the will, or a consent affidavit for the khata office, is an admission you will spend the rest of the case explaining. The second is handing the original will, or signed copies of the death certificate and family tree, to the brother who asked for them "for the bank". The third is not securing the medical file until after the plaint is filed. The fourth is pleading fraud and forgery because they sound strong: those pleas put the burden on you, and when they fail they colour the judge's view of your genuine points. The fifth is delay, which turns into a sale deed and a purchaser.

The cards below collect the actions that protect your position in the first month.

What I tell people at the first meeting

Where these cases actually turn is on the two attesting witnesses and the medical file, not on how unfair the will feels. The court will not redistribute your father's property because equal shares would have been kinder. It will refuse to act on a document whose making the propounder cannot account for. So the first hour of a consultation goes to the day of signing: who was in the house, who typed the will, who chose the witnesses, who kept the paper, and what the doctor was doing there. If the brother's account of that day is coherent and the witnesses will support it, I say so, and we talk about a negotiated share rather than a five-year suit. If the account has holes, the holes are the case, and we build the evidence around them. The person who gets the injunction first negotiates from strength. The person who signs the family settlement first negotiates from nothing. Our wills, probate and succession practice handles both the challenge and the defence of wills, and the NRI succession and inheritance page covers how a sibling abroad runs the same case on a power of attorney.

Frequently Asked Questions

This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.

Related Guides

Our wills, probate and succession practice and our property and real estate practice work together on contested wills that involve a family home.

• Probate Is No Longer Mandatory in India: What Changed in December 2025
• Property Partition Suit in India: How to Claim Your Share
• My Father Died and the Khata Is Still in His Name: Khata Transfer After Death in Bengaluru