India related question about Oral Will?

Question

An illiterate Hindu man died in India who had acquired quite a bit of property in his lifetime. He retired after educating all his children who live good lives abroad and are all professionals making good money. He had 4 children and a wife. He had always told his wife that when he dies she will be the owner of all his property. One of his children had witnessed this conversation. Not knowing about making a written will or the importance of it since he was illiterate, can what he said to his wife be considered an oral will and hold up in an Indian court?

His kids are now fighting to get their share of the property which would pretty much leave his wife who is sick with a chronic illness with barely anything to live on. According to the Hindu Succession Act each one is entitled to a share of the property.

The kids have not in the past or intend to in the future contribute to their mother's well being ,and are abroad so the Hindu Maintenance Act would probably not impact them.

Answer 1

As such oral will holds good in case of soldiers posted on war front but how far it will hold good in your case it depending on the civil court where you file petition for probation of such a will. Although the Indian Succession Act no where lay down any condition regarding validity criteria of any oral will but if we see it from the point of view of simple contract even such will should be considered valid in the eye of law. The conditions necessary for any will to be valid are :- 1) the testator making it should be of the age of majority, 2) he should be of sound mind & should not be suffering from any mental disorder, 3) he should make the will without any force or fraud i.e. it should be his free will, 4) the will made should clearly specify the details of the property regarding which it is being made along with the person or persons who will be beneficiary of such a property, 5) such a will should be made in presence of at least one witness who should also be of age of majority & if it is written will such a will should be signed by the testator in presence of this witness ,who also sign it in presence of the testator, 6) such a will should clearly mention the person who will be the executor(get it probated) for such a will, usually it the person or persons in whose favor such a will is made. Now I think in your case all these conditions as such are fulfilled hence no harm moving a petition for probation of such a will, where the statement on oath of the witness can be taken & the court may consider it valid will of the deceased person, thus probating/granting it in favor of the wife/widow of the deceased person. As far the Hindu Succession Act is concerned it come to action if the person dies intestate i.e. without making any will regarding his self acquired property, here too the widow of such a person gets a share of the property.

Answer 2

An oral will is as good as the written or duly documented one. However since in your case the will in question is disputed, hence can not be proved in the court of law.

Had it not been challenged by any of the legal heirs, it would have been enforced.

Moreover a benificiary [In your case, the son who witnessed having heard his father dictating the will], can not be a witness to the will.

In this case, it seems that the court will order award according to the provisions of Hindu law as the deceased died intestate, i.e. without making any will.

Answer 3

Retain a qualified solicitor or lawyer to deal with this.

Otherwise, most jurisdictions generally favor the wife over children. However, oral wills are not generally upheld because then anyone could claim to be an heir under an oral will. It leaves plenty of room for fraud.

Answer 4

Oral will have full force in Indian Courts.