Probate and wills
CA VINAY JAIN
(Querist) 16 March 2013
This query is : Resolved
A REGISTERED WILL IS CONTESTED SINCE 1989. PROBATE WAS GIVEN BY DJ IN 2002 TO THE PETITIONOR .THIS WAS RECALLED IN 2003 ON OUR APPLICATION AS THE PROBATE WAS ALLOWED EXPARTE WITHOUT CONSIDERING OUR OBJECTIONS AND WITHOUT PROVING THE WILL U/S 68 OF THE EVIDENCE ACT BY THE HON'BLE HIGH COURT IN THE YEAR 2012 AND IS TO BE DECIDED AFRESH AND PROVED IN ACCORDENCE WITH LAW .
IN THE MEANTIME , THE PETIONER/APPLICANT HAS VIOLATED THE CONDITION OF THE WILL BY GIVING THE PROPERTY ON LONG LEASE CONTRARY TO THE CONDITION MENTIONED IN THE WILL (WHICH ONLY SAID THAT PETIONER CAN ONLY ONLY COLLECT RENT AND RESIDE AND NOT SELL , MORTGAGE, GIFT OR GIVE ON LONG LEASE THE GIVEN PROPERTY...)
FURTHER, IN THE PROBATE APPLCATION THE PETIIONER HAS WRONGLY SHOWN THE VALUE OF THE ASSETS AND LIABILITIES (UNDERSTATING THE ASSETS AND OVERSTATING THE LIABLITIES)AND CONSEQUENTLY SHOWING NET
ASSETS AS NEGATIVE AND CONSEQUENTLY AVOIDING TO PAY ANY STAMP DUTY/COURT FEES.
SIR , MY QUESTION IS WHETHER THE PROBATE APPLICATION IS MAINTAINABLE AT ALL ??
NOW WHEN THE CASE IS PROCEEDING AFRESH WHAT SHOULD BY MY LINE OF ACTION SO THAT THE PROBATE APPLICATION IS DISMISSED ??
ajay sethi
(Expert) 16 March 2013
you have to challenge the genuine ness of will . not signed by testator . whether it bears signature of 2 attesting witnesses .
also sthat proper court fees have not been paid . you must have negaged a lawyer . he will do the needful
Devajyoti Barman
(Expert) 16 March 2013
Deficit court fees can always be paid later. Execution OF will IN MOST STATES DOES NOT ATTRACT ANY STAMP DUTY.
Validity of Will can only be challenged in the ground of free will of the testator.
Raj Kumar Makkad
(Expert) 16 March 2013
The applicants by their own act and conduct have shown that the will is not genuine. They themselves are defyin the contents of the will so this shall also become a major ground for challenge apart from filing a counter claim to get that property resumed in the same status as was at the time of filing the probate and you have opportunity to challenge the will on all possible grounds.
CA VINAY JAIN
(Querist) 17 March 2013
Shri Burman ,
U have stated that the Will can be challanged ONLY on the ground of free will of the Testator . Here there are number of other flaws also . Can the Probate application not be dismissed on these grounds ?? Further , Probate application itself seems to be defective . How it can be quashed .? What about counter claim and accounting of assets and liablities for last 27 years . NO statement of account/Inventory filed after 31.3.2009 (and that also wrong) . ???
Devajyoti Barman
(Expert) 17 March 2013
There is no scope of filing inventory in Probate application. Probate application deals with validity of Will only. No other issues are involved in it.
Only after completion of trial the judge would pass judgment on its validity. There is no scope for prior dismissal.
CA VINAY JAIN
(Querist) 17 March 2013
Shri Burman ,
As I have stated that this case is keenly contested regarding the validity of the Will since 1989. As per the Provisions of the Indian succession Act, 1925 Statement of Account and Inventory has to be filed within 6 months by the Executor. My question is if in the Probate Application itself filed by the Petitioer the Assets and liablities are stated wrongly (It is mandotory to file the correct assets and liablities as per the with the Probate application u/s 276 alongwith certain other things . Further the annual statements are to be filed by the exexutor. Is it not a valid ground for quashing the Probate application ? Further , the executor as I have stated contridicted the terms of the alleged will also as I have during the long pendency of the case ? What remedies are available to me ?
