Power of executor of privileged will
Manish Sharma
(Querist) 14 June 2014
This query is : Resolved
Can an executor defined in privileged will define the heirs. My father was serving army office and we received his will from Army HQ after his demise. We are two brother's and two sisters. My father has made my mother sole heir and executrix and administrator of all his movable and immovable property.
Now we have a property in delhi which my father has bought of his own. In the transfer of papers of the house we were advised by the authority to submit the affidavits and indemnity bonds. To which my elder brother has refused to sign. Without his signature we cannot process the property transfer. Can the executor of the will define the heir and can we submit the papers without his name and affidavit from him.
Please advice its very urgent.
Devajyoti Barman
(Expert) 14 June 2014
Executor of Any Will , privileged or unprivileged can not define heirs.
The heirs remains unchanged with the nature of Will and if one of the heir's signature is required then it has top be given.
ajay sethi
(Expert) 14 June 2014
if brother has refused to sign affidavit property wont be transferred . you will have to apply for probate of will
Dr J C Vashista
(Expert) 15 June 2014
Since your deceased father has executed a will, for all properties, in favour of his wife (your mother) it is her self-acquired and she can dispose it of as she desired.
Rajendra K Goyal
(Expert) 15 June 2014
Apply for the probate of the will,and on the basis of document move for transfer of ownership.
Anirudh
(Expert) 15 June 2014
Dear Manish,
I will come to the role of the Executor later.
First tell, please tell as to how the property left behind your deceased father has been disposed of through the WILL (in other words, to whom his properties have been bequeathed)?
Guest
(Expert) 15 June 2014
As advised by Experts Probating the Will would be the best solution.Consult a Local Advocate with all details
Sankaranarayanan
(Expert) 15 June 2014
yes you should probating the will first with the help of local lawyer
Manish Sharma
(Querist) 16 June 2014
Dear Anirudh Sir,
Thank you for your reply. In the will all the property has been bequeathed to my mother.
Moreover is it mandatory for us to take probate of the will as the will be privileged will. So can we apply for the transfer of the property without taking the probate.
Please advice.
Regards
Manish
Anirudh
(Expert) 16 June 2014
It is a very simple query.
Since the property is situate in Delhi, there is no requirement for probate of will (privileged or non-privileged).
On the basis of the WILL, you can get the property mutated in the name of your Mother. However, the Municipal Authorities (because of their past practice) may ask for NOC from other legal heirs. The legal heirs, I believe have no objection to the WILL, and therefore can give the NOC so that the mutation can take place without any botheration.
Anirudh
(Expert) 16 June 2014
I am sorry, I forgot to note that one of the legal heirs (your elder brother) has refused to sign. In fact, his signature or consent is not at all required.
You submit your papers for mutation to the authorities concerned. They will do the mutation. At best, they will send letter to all the legal heirs seeking their views. In case your elder brother is not ready to give NOC, it is he who has to approach the Court objecting to the WILL and not you.
Guest
(Expert) 16 June 2014
Dear Author for your information
LATEST INSTRUCTIONS W.E.F 8.8.2011 BY ASSESSOR AND COLLECTOR , PROPERTY TAX DEPARTMENT , MCD
After having considered, Hon'ble Lt.Governor, Delhi has been pleased to waive the condition of the beneficiaries of an Unregistered Will obtaining Succession Certificate/Probate Order from a Competent Civil Court and to direct that Mutation may be allowed in cases of Unregistered Will in favour of beneficiary with certain safeguards:
a. If the' NO OBJECTION ' of other legal heirs of the deceased are made available by person(s) claiming mutation
OR
b. In case no objections are not furnished by the person in whose favour mutation is sought, a notice to that effect will be issued by the Department to other legal heirs for their NOC within a period of one month. Either in case no objections are received or in case no objections are not received within the prescribed period, then mutation shall be granted:
c. In CASE certain dispute exists or objections are received then the person claiming mutation be asked to obtain Probate of Will/Letter of Administration(from Competent Court).
d. Indemnity bond will be continue to be obtained from the person(s) whose name is being entered in MCD records to indemnify MCD of any loss/any litigation arising in the case of said property and will continue to pay property tax under the DMC Act.
Devajyoti Barman
(Expert) 16 June 2014
Mr. Narasimha has effectively resolved this query..good job.
Guest
(Expert) 16 June 2014
Dear Author in your case since one of the Legal Heir is not willing to co operate and Probating the Will would be the best solution which would save your time also.Other options would be Either you should Succeed in getting a NOC from him or at least you should be able to convince him not to raise any objection/dispute.You can not just ignore him.
Guest
(Expert) 16 June 2014
Thanks Mr.Devajyoti Barman ji.
T. Kalaiselvan, Advocate
(Expert) 17 June 2014
I appreciate the timely presentation of the exact procedure to be adopted in such a situation by expert Mr. Raj Kumar, hope this solves the author's query fully. Now the author may proceed as per the advise rendered above.
Guest
(Expert) 17 June 2014
Thanks Mr.T.Kalaiselvan Sir.
Raj Kumar Makkad
(Expert) 18 June 2014
You are required to get the probate of the will from the competent court.
Manish Sharma
(Querist) 18 June 2014
Dear Sirs,
Thank for your for wonderful advice and guidance. Hope with your guidance things will work out.
Guest
(Expert) 18 June 2014
welcome please
Manish Sharma
(Querist) 19 June 2014
During my discussion with one of the local lawyer, he has informed us that Probate of privileged Will is not necessary in light of the provisions contained u/s 213 (2)(i) of the Indian Succession Act, 1925. Since my mother is executrix and sole heir, he is advising for mutation and file the papers.
As per the lawyer probate of the will is not necessary as the will is attested by two witness and army HQ.
What shall we do now.. sorry for extension of the topic.
Need experts advice in this as well.
Guest
(Expert) 19 June 2014
Since he being the Local Advocate he would have confirmed the same after going thro the documents.He would have certainly found some possiblities.So no harm you take his advise and implement the same taking his service,assistance since ha had confirmed the same.I had only discussed with you the procedures with no intention of discouraging you.You could go ahead as advised by your Local Advocate and I have no intention of stopping you from proceeding further as advised by your Local advocate AT YOUR OWN WISH PLEASE.
Manish Sharma
(Querist) 19 June 2014
Dear Narasimha Sir,
Thank you very much for your reply, your reply has been of great help to me in deciding the course of action, As informed by the local lawyer, the will is a privileged will under section 65 & 66. It is attested by Army HQ. Moreover the only legal heir and executrix in the will is my mother. So he is saying that as per the norms since the only legal heir is my mother and all the movable and immovable property is bequeathed to my mother. As per his statement no other legal heirs have any right in the property so there is no need to take NOC from any of the legal heirs.
As earlier mentioned he is also saying that privileged does not require probate.
Please advice. We had already lost lots of time and money.
regards
Manish
Guest
(Expert) 19 June 2014
Dear author,I had already given my reply please Also note you had sufficiently discussed the same with our Experts in FORUM also about 17 days before.And your last query is purely based on the opinions of the Legal Experts in Forum and doesn't seem to be that of any Local Advocates.If it is confirmed by Local Advocate you could very well act up on his advise AT Your Own Wish Please.
Raj Kumar Makkad
(Expert) 21 June 2014
No further reply against such repeated query.
