Frequently Asked Questions On Inheritance And Will

QUERY #1

Can a registered will that has a copy of itself in the office of the sub-registrar be considered as revoked if the original is lost?

ANSWER:

The short answer to your query is NO. No one can claim that the will has been revoked.

The rules regarding the creation and execution of wills are governed by the Indian Succession Act, 1925. As per Section 70 of the same Act, for an unprivileged will, the ways in which it can be revoked are as follows:

• By marriage; or
• By another will; or 
• By any writing from the testator declaring their intention to revoke the will and executing it in the manner in which an unprivileged Will maybe executed; or
• By burning, tearing, or otherwise destroying the will by the testator or some person acting in his direction, with the intention to revoke the same.

Similarly, Section 72 of the Indian Succession Act, 1925, states the ways in which a privileged will can be revoked:

• By an unprivileged will; or
• By any expression of the intent to declare the will invalid; or
• By burning, tearing, or otherwise destroying the will by the testator or any other person acting under his direction, with the intention of revoking the same.

As evident from the above mentioned sections, losing the original of a will while a certified copy exists cannot be considered as a revocation of the same. The testator must, by some action, express his intent to revoke the will, which is missing here.

Therefore, simply losing the will cannot be a valid reason to file a suit claiming the revocation of the will, while a registered copy of the same exists with the registrar.

I hope this helps. Thank you for your time and patience!

QUERY #2

My mother's will over a property that was inherited by her, me and my brother after our father's death has not yet been probated. There is now a partition suit pending before the civil court. Can I sell my rights to a third-party under this situation?

ANSWER:

The short answer to your query is NO. You cannot sell the property while a suit on that property is pending.

Here, a few things are to be considered. Your mother’s will has not been probated yet. Meaning as of now there is no way to claim your share of the property as per her will provided your name is included in it.

Along with this, a partition suit is pending in the civil court. This means after the fact of legal heirship is proved by the parties, the court will come up with a partition deed, wherein the property will be equally divided between the legal heirs. As long as the case is pending before court, you cannot transfer this property to someone else as that is prohibited by Section 52 of the Transfer of Property Act, 1882. It clearly states that when a pending litigation exists on a specific property, it cannot be transferred or otherwise dealt with in a way that affects the rights of the other party.

Therefore, you cannot transfer the property to anyone until the court divides this property.

I hope this helps. Thank you for your time and patience!

QUERY #3

Can my father's second wife and daughter have any claim towards the property he transferred to his two sons through his will? The second wife and daughter had earlier been given some property by my father.

ANSWER:

The short answer to your question is NO. The mother or daughter cannot claim any rights over the property.

This is under the assumption that the property in question is self acquired. If the property in question is ancestral, the daughter being a legal heir may have a claim to the same as per the Hindu Succession Act 1956. For a property to be considered ancestral, it must have been passed on for four generations by the male ancestors, without being divided, partitioned, or sold. 

Assuming the property is self acquired, the second wife or daughter cannot have any claim towards the father’s property, unless he had died intestate. The legal heirs cannot have a claim to a deceased male’s property unless he had died intestate, as per the Hindu Succession Act, 1965. Since that is not the case and he has made a will transferring the said property to his two sons, it cannot be questioned in court. 

Therefore, the second wife or the daughter cannot raise any objection regarding their rights over the said property as such rights do not exist.

I hope this helps. Thank you for your time and patience!

QUERY #4

Can the second wife of a deceased male forced by her daughters, where the deceased married while he had a living spouse, claim her share over this deceased male's property if he died intestate?

ANSWER:

The short answer to your question is NO. The second wife does not have any right towards said property, but her children do.

Bigamy in India was banned by the Hindu Marriage Act, 1955. As per Sections 11 and 17 of the same, if either of the parties to a marriage had a living spouse on the date that it took place, then such marriage will be considered void.

Also, as per Section 16 of the same act, any child that would have been considered legitimate if the marriage was valid, shall be considered a legitimate child irrespective of the void status of the said marriage.

Therefore, the father’s marriage with the second wife shall be considered void by law, but the children they had in this marriage shall be considered legitimate.

Since the father died intestate, as per Section 6 of the Hindu Succession Act, 1956, the son, daughter and widow of an intestate male shall inherit his property. Since the second marriage is not valid, the second wife may lose their claim towards said property, but their children from the said marriage shall still have a claim towards this property.

I hope this helps. Thank you for your time and patience!