Regarding will
Muni
(Querist) 17 August 2013
This query is : Resolved
If the Will’s validity is successfully challenged the testator’s assets will be distributed in accordance with the testator’s previous valid Will or (if there is no previous valid Will) the intestacy rules.
Is the above statement true, about using the testators previous Will when last Will challenged successfully, under Indian constitution? Can I get court citation on the same.
ajay sethi
(Expert) 17 August 2013
academic query . state facts of your case . for citation visit indian kanoon website
Swami Sadashiva Brahmendra Sar
(Expert) 17 August 2013
Yes when a will is declared invalid the the property will devolve according to rules of inheritance of intestate property or previous/subsequent will, if any.
A will is not challenged under Indian Constitution. It is challenged through a civil suit on the grounds of fraud, forgery or violation of provisions of Indian Succession Act, 1925.
You need not worry for case law/citation.
Muni
(Querist) 17 August 2013
My grandfather passed away and had made a registered Will (1) dated 10/oct/2010 and an (2) unregistered Will dated 05/August/2009 to my father.
When my grandfather made a (1) registered Will, the property as per records is 19 guntas, but in the schedule, he has mentioned in the Will is 1 acre and boundaries are also incorrect(which is incorrect). If this Will is challenged based 'Lack of testamentary capacity' and the Will is declared VOID by the court.
Can my father use a unregistered Will(2), dated 05/august/2009, which contains the scheduled property details correctly, for obtaining the absolute deed of this property.
Devajyoti Barman
(Expert) 17 August 2013
Only the last validly executed Will is taken into account.
Muni
(Querist) 17 August 2013
can any court citation references could be provided by the forum.
Muni
(Querist) 17 August 2013
can any court citation references could be
provided by the forum on that the last valid Will be considered.
Raj Kumar Makkad
(Expert) 17 August 2013
Supreme Court of India
H. Venkatachala Iyengar vs B. N. Thimmajamma & Others on 13 November, 1958
Equivalent citations: 1959 AIR 443, 1959 SCR Supl. (1) 426
Devajyoti Barman
(Expert) 18 August 2013
This is established principle of law and no need for citation. In any case there are many depending upon the facts of each case.
Muni
(Querist) 18 August 2013
When it is said "Only the last validly executed Will is taken into account.", that means my father can get a probate on the Will dated "05/august/2009" once the Will dated "10/oct/2010" is cancelled by the provision of Indian Succession Act, 1925.
Devajyoti Barman
(Expert) 18 August 2013
Probate can be applied for for the last Will only.
Now if the contestant comes up with another prior Will then the last Will be considered if it is found valid.
Last Will is taken into account and with the execution of the same automatically all previous Wills become inoperative.
R.K Nanda
(Expert) 18 August 2013
nothing to add more.
prabhakar singh
(Expert) 18 August 2013
Barring provisions of U.P.Z.Act applicable to agriland in U.P.,no law in country requires any will to be registered.
Then subsequent will can be unregistered provided a reasonable explanation or circumstance exists why testator could not choose its registration and propounder of latter will removes every doubt will is surrounded with.
A will can not be thrown simply because of incorrectness of mentioning properties in it's scheduled if that is explained reasonably and no other doubt is casted.
In case both gets proved last shall take effect.
In case last gets unproved but the former proved,the former shall be given effect to.
In case either gets unproved,law of succession shall be given effect to.
Muni
(Querist) 18 August 2013
I am not a lawyer hence repeating the questions, as I am unable to infer from the previous answers.
My understanding:
For all reasons latest Will be considered for probation. If for some reason (may be incorrect schedule of property[lack of testator capacity]) the latest Will become void or annulled, the previous/prior Will come in to effect and a probation be obtained on the prior Will.
Raj Kumar Makkad
(Expert) 18 August 2013
The judgment referred my me do contain the entire legal provisions coming in the way. You can search it online and after going though it, you may raise any question if not solved.
prabhakar singh
(Expert) 18 August 2013
'the previous/prior Will come in to effect and a probation be obtained on the prior Will.' WOULD NOT BE IPSO FACTO POSITION
THIS ONE TOO WOULD HAVE TO BE PROVED for being given effect to,ELSE LAW OF SUCCESSION SHALL APPLY.
Muni
(Querist) 18 August 2013
Thanks for all the answers. I do understand, again the prior will have to be proved. What are the timelines for asking for a probation based on a prior Will, when the challenge of the Last/latest Will is pending in the court? How can my father proceed on this? Should we inform the court about existence of the prior Will?
prabhakar singh
(Expert) 18 August 2013
Has the first Will been revoked/cancelled in the second will?
If the second Will does mention the former and does not lay revocation clause,mentioning or admitting existence of the former would go to ruin the fate of second will.
I doubt now about the genuineness of the second unregistered will not containing revocation clause of the former.
Devajyoti Barman
(Expert) 18 August 2013
It appears you can not be made understood on the raised by you. You batter meet personally a local lawyer and discuss the points you wish to know.
Muni
(Querist) 18 August 2013
Second Will means: Latest Will
Prior means: Former Will
If the second Will becomes annulled, does it matter, whether the revocation clause is present or not? Will part of the Will b e considered or whole Will is annulled.
Second Will is a registered Will and the former/prior is an unregistered Will.
ajay sethi
(Expert) 18 August 2013
registration of will is immaterial .
generally in all wills there is a clause i hereby revoke all my former will made if any and declare this to be my last will and testament .
Devajyoti Barman
(Expert) 18 August 2013
visit a local lawyer..we are not conducting a class room.
prabhakar singh
(Expert) 18 August 2013
A person is called MUNI only when he goes on oath not to speak unnecessarily but that does not seem truth about you.You are not that what your name suggests.
Muni
(Querist) 18 August 2013
Thanks for the all people in the forum on answering my repeated questions. I do understand, there difficulty in conveying my queries to the forum. As suggested in the forum, I will meet a lawyer to get my queries answered. Thanks again.
-Regards,
Muni
