Probate of a will
K.R.CHANDRAN
(Querist) 23 May 2014
This query is : Resolved
The flat originally was purchased by the father and inherited by the mother after his death.A Will made by the mother in Andhra pradesh and registered there.Mother had in her will given the property - a flat in Mumbai to her son.The property in question is a flat in a society. There is a claim from the sister for the flat eventhough the mother had given 100% share to the son.Mother had given in her will certain amount by way of FD for her daughter.can the daughter claim the share in the property also. The mother had settled her claim through her will by giving her Fixed deposit with a bank.Should the society transfer the flat to the son based on the will or ask for the probate of the will
Devajyoti Barman
(Expert) 23 May 2014
How did the flat come to the hands of mother on death of father?
If father has not left any Will then his widow, son and daughter all inherited the flat in equal share.
The mother in death of father can become its sole owner only if the father had left any Will in her name in which case the mother can give this flat to any one she chooses and in that even the other legal heirs has no say it.
Rajendra K Goyal
(Expert) 23 May 2014
If the flat was not gifted / given through will to mother by the deceased father, she is not absolute owner of flat. Widow with other legal heirs would inherit the property equally. She can make a will for her share in the property.
ajay sethi
(Expert) 23 May 2014
society should insist on probate of will . as mentioned by other experts it is not clear how mother inherited property on demise of her husband . only if father left a will would mother be absolute owner of the property
K.R.CHANDRAN
(Querist) 23 May 2014
father left no will. The mother got the property - ie flat in a society by way of nomination. Another question is about PROBATE - is it mandatory in all the states when a registered will is existing.Particularly when there is a dispute whether the registered will is good enough or probate of the will is required.
Guest
(Expert) 23 May 2014
Please clear this line: The flat originally was purchased by the father and inherited by the mother. How inherited? The mother and all children have equal right in the property of father. For Probate Ad-valorem fees is paid. If only mother has inherited the property on the basis of will or gift then she can make a will in favour of son otherwise not.
Anand Bali Adv.
(Expert) 24 May 2014
Dear Friend,
The Key question is how the Mother inherited the House? In fact if the Father dies intestate, the property will be divided equally in 3 shares one for each as of Mother, Son and Daughter.
The question of probation of the Will does not arise for the 2/3rd portion of the property which is now in fact not owned by her and thus she is not having any right to Will for that portion, however for her 1/3rd portion she can make Will.
Sister's claim can not be settled by giving her the amount of the FDs as it(Property) was not belonging to the Mother against which she can settle her for any money. If the FDs are given to her with out mentioning that only because of the her claim to the property & in lieu of that she has given her FDs amount.
Here it is to note that if this FDs amount is also not a self earned amount of the mother this amount will also be divided among the Brother and sisters as for this also Mother was not having any right to make the Will.
Please send the whole detail of the property and FDs that from where it has been originated, so that a proper legal advise can be given to you.
T. Kalaiselvan, Advocate
(Expert) 24 May 2014
It is understood that the mother acquired the property on the basis of a valid nomination done by the deceased i her favor with the society before his death. Under such circumstance, though the mother is a nominee, she is just a trust on behalf of the legal heirs of the deceased to receive and redistribute the property to all the legal heirs of the deceased. Thus, under the said circumstances, she has no right to execute a Will in favor of her son over the entire property, she can do so in respect of her share in the property. Assuming that the amount in FD is her self acquired property, she can bequeath the same in favor of any one, thus in her Will she can even mention that the FD amount was given as a compensation to the her share in the immovable property bequeathed to her son and not the entire property. If mother is alive, probate of Will is not possible, instead the Will can be written afresh with modifications, if she is not alive, then the Will can applied before the court for grant of probate to it.
