Execution of will
Vasudevan
(Querist) 21 May 2018
This query is : Resolved
I have one daughter and one Mentally Retarded son both are major. The daughter has got marriage and she has a girl child of age 5. Due to matrimonial disputes, my daughter and my grand daughter are with me. I have some movable and immovable properties. I want that those properties to be safe till my grand daughter gets marriage, as my son in law and his family may indulge and give trouble my daughter on the said property in my absence. My daughter is now moving to court for divorce. Please suggest how a will be executed by me on my properties so that my son and daughter and my grand daughter safely enjoy the same without any hindrance from my son in law side.
Guest
(Expert) 21 May 2018
Since you had mentioned about your son's condition instead of a Will you could execute a settlement deed in favor of the three son ;daughter and grand child in detail. Settlement deed will not cost much for any value of property it would be the same and small amount only. Confirm with concerned Registrar or Sub Registrar Office.As long as you hold all the documents with you , you will have the right to change or cancel or rectify the settlement deed.Discuss with a document writer at concerned Registrar Office.
Guest
(Expert) 21 May 2018
When your self execute an Will depending on your son's condition Probating process in the Court might be complicated.
Kumar Doab
(Expert) 21 May 2018
Which personal law applies in your case?
Or are you all Hindu?
The said property is agricultural land, rural, Urban, or it is a building?
The property whose title currently is in your name is self earned/acquired or ancestral?
The property is in which state?
Confirm!
Kumar Doab
(Expert) 21 May 2018
Generically speaking; son in law has NO forced share in estate/property of father in law.
Spouse e.g; Husband has NO forced share in estate/property of father in law.
Spouse say; Husband is legal heir/successor of his wife and have right of inheritance/succession in self earned/acquired/absolute estate/property left undisposed by his wife in by her lifetime and vice versa for other spouse i.e. Wife.
Sons/Grandsons, daughters/granddaughters, have NO forced share in self earned/acquired property of grandfather/grandmother. Sons, daughters are legal heirs/successors of their parents and have right of inheritance/succession in self earned/acquired estate/property left undisposed by their parents in by their lifetime. Sons, daughters are legal heirs/successors of their parents for share in ancestral property of their parents.
Thus you can very well leave a valid WILL to the extent as per provisions of personal alw that applies in your case; in favor of your daughter and granddaughter and narrate your wishes including that your son in law shall have NO share in your estate/property.
The WILL is legal document and must be within provisions of applicable laws.
The WILL is last wish of testator and is supreme and courts act to execute last wish of testator.
Preferably register the WILL.
Kumar Doab
(Expert) 21 May 2018
You may also explore perspectives of Settlement deed with life rights.
The property that devolves by WILL/partition/gift/settlement etc is of nature self acquired.
And title holder can dispose the property in anyone’s favor by a valid/registered deed in his/her lifetime. Your daughter can execute a valid WILL (preferably registered) in anyone’s favor and narrate her wish in IT.
Approach your own very able senior LOCAL counsel of unshakable repute and integrity specializing in testamentary/succession/civil matters and having proven successful track record ….. and worth his/her salt …for help and guidance .
Check at LOCAL Civil courts… HC,SC
Kumar Doab
(Expert) 21 May 2018
Registered WILL (Registered by registering authority appointed by govt) is not easily set aside atleast on counts of authenticity.
IT is mandatory to probate the WILL in areas of Bombay, Madras, Calcutta.
The authority under whose jurisdiction property falls has a set procedure for such matters if the WILL has surfaced; Testate Succession…….and the prescribed forms, procedure, process is available in O/o Authority and even on website. Certified copies of the WILL, death certificate, legal heir certificate/affidavit (per local procedure/precedence) are basic requirements. The authority may ask for NOC from legal heirs (other than beneficiary; and this can be the best option) and/or to release newspaper advt and/or may write to legal heirs to submit their objections if any within set time.
If there is NO contest to the WILL by any legal heir then authority shall act upon the WILL without any cloud on it and transfer the ownership in the name of beneficiary.
If WILL is contested it lands up in probate court of pecuniary jurisdiction. The court shall decide on validity of WILL (Registered WILL is not easily set aside atleast on counts of authenticity. IT is vaguely remembered that there were threads at LCI n which querists/members posted that the Authority commented since WILL is registered for them there is NO need to demand probate).
Check locally for the procedure and how to comply with procedure {(as on date only since IT may change in future), ( Registered WILL is not easily set aside atleast on counts of authenticity)}
If contested WILL (registered/unregistered) lands up in probate court of pecuniary jurisdiction.
Thereafter concerned official in the O/o Authority e.g; Patwari, shall act upon the matter and transfer the ownership by inheritance/probate in the name of legal heirs/beneficiary in mutations records.
Thereafter obtain copy of updated mutation records.
The legal heirs may also consider perspective of registered family settlement narrating the WILL and register it.
The title holder/testator can also explore the registered settlement deed with life rights.
Kumar Doab
(Expert) 21 May 2018
You may also pick up relevant points from threads on WILL by searching in SEARCH option e.g;
http://www.lawyersclubindia.com/experts/what-happen-if-beneficiaries-of-will-predeceased--663796.asp
You may certainly avoid to be carried away by the poor show with vague/incorrect/fully wrong/illegal/unlawful/void …………..posts just to contemp the Apex Court and all courts as usual, of
IT=@PSD
That has multiple fake ID’s to advertise and show off at LCI to allure unsuspecting querists..
In that thread IT=@PSD is at 4th,5th,6th,7th,8th,9th post and so on is same entity with multiple fake ID’s….
and poor show off is due to IT’s=@PSD’s insatiable itch and urge to litter unending nuisance/sarcasm/abuse at LCI from Day1…
Rest Experts have already posted correct legal position in same matter many times and per judicial pronouncements…
You can think of including more than one beneficiary..in the WILL.
Ms.Usha Kapoor
(Expert) 21 May 2018
Yes, you can go for registered family settlement deed.It is cost effective.and binding on all the family members who are parties to it.
You are 1 married daughter her 5 year old grand daughter and a mentally retarded son.So its better to arrive at a registered Family settlement deed than a WILL
Family Settlement Deed:
, FIRSTLY GET A MEMORANDUM OF PARTITION ( in house documentation ) READY BY PUTTING SIGNATURES ON ALL SHEETS. IT WILL CONSISTS RESPECTIVE SHARE PARTICULARS IN EACH SCHEDULE. AFTER ITS PREPARATION DRAFT A PARTITION SUIT PAYING COURT FEE ONLY FOR DECLARATION OF SHARES. ON ITS ADMISSION IN THE LEARNED COMPETENT CIVIL COURT, FILE A COMPRISE PETITION AS PER THE MEMORANDUM -OF-PARTITION. GET THE MEMORANDUM - OF PARTITION IN EVIDENCE,ADDUCE ACCORDINGLY. THE RESPECTIVE COURT WILL PASS A COMPROMISE-DECREE. IN THIS WAY YOU WILL SAVE MONEY,VALUABLE COURT TIME AND YOUR HEALTH. BEST WISHES
There is often confusion while seeking partition of properties amongst Hindu families, whether parties should opt for a family partition deed or a family settlement deed. The effect of the both is same - divide the property. The substantial difference is that of the payment of stamp duty and registration of the document recording partition.
A family settlement is essentially an agreement where family members mutually work out how a property should get distributed among themselves. All the parties should be related to each other and have a claim to a share of the disputed property. The latter need not be limited to real estate, but can also cover movable assets like jewelry or money in bank accounts. A family settlement is usually used to settle common property or joint property that the family owns as opposed to individual or self-acquired property. Also, merely reaching a consensus is not enough; there are a few legal formalities that must be completed to ensure that the agreement is valid.
Firstly, the settlement document must be signed by all the family members involved. A missing signature can easily become ground for challenging the document in court at a later date. In addition, as a safety measure, the document should be attested by two witnesses, though it is not mandatory. The next step is to register the agreement. According to Section 17 of the Indian Registration Act, a family settlement that purports to assign immovable property must be mandatorily registered or the deed would be invalid. A stamp duty is applicable on such deeds and the amount would depend on the value of the property involved.
The deed of settlement once executed and registered is binding on the legal heir of the settlers.
However the same may not be binding if it affects the legal rights of the heir adversely.
So the deprived son can file suit for partition and injunction so his share in the ancestral property is not lost of.
Kumar Doab
(Expert) 21 May 2018
While you are alive WILL, settlement deed with life rights etc can be perspectives for you...
After you leave this mortal world your family members can consider registered family settlement deed that may leave NO scope for future litigation...
Your concern is divorce of your daughter, her estranged spouse, mentally retarded son and some other matters that you might have posted and may still be unresolved...
Therefore you may chose the options wisely..
Don't get allured by any unscrupulous elements, IT's and entities, and lean on your own very able LOCAL counsels... as already suggested..
Vasudevan
(Querist) 22 May 2018
Much obliged by the suggestions of the all Learned Experts. Shri Kumar Doabji, I am a Hindu and residing at Pondicherry and the properties were buildings only. One property is ancestral one. However, the building was raised by me from my source. I think I had clarified the position. Once again thanks to all Experts.
Kumar Doab
(Expert) 22 May 2018
Dear LCI Querist @ Mr. Vasudevan,
The ancestral property may be partitioned by boundaries.. and deed be registered.
You can dispose upto your share.
While you discuss in person with a very able LOCAL counsel as already suggested you may take into account the appeal matter and in case of assumption ......assumption of recovery the establishment may ....may claim charge on estate..
Your counsel can advise you.
The WILL is not the only option/perspective.
Kumar Doab
(Expert) 22 May 2018
You are welcome.
Wish you the very best.
P. Venu
(Expert) 22 May 2018
You may execute the settlement as suggested, to take effect after your lifetime.
Vasudevan
(Querist) 23 May 2018
Once again thanks to the Learned Experts for the suggestions. With Regards please.
Guest
(Expert) 23 May 2018
Welcome Please ..................................
Kumar Doab
(Expert) 23 May 2018
Once again you are welcome!
It is good to see that some querists do come back to thank the Experts.
