Registered will ....
Querist :
Anonymous
(Querist) 17 March 2018
This query is : Resolved
I live in delhi i have querry related to the will and probate kindly answer me. I live with my father who has other 2 brothers and 2 sisters..we have a property in delhi where we all live except two sisters of my father who are married..my grandmother left a registered will in favour of three brothers including my father. My garndmother died last month and now we wish to get the will probated .we are nlt in good terms with the sisters of my father but there are good relations with the brothers of my father's now can the sisters of my father could be a hinderance of any kind in will getting probated ??? Do we require NOC from them or not please tell...
Querist :
Anonymous
(Querist) 17 March 2018
I require an expert's advice
Guest
(Expert) 17 March 2018
Discuss with your Advocate and initiate the Procedures of Probating the Will. No Co Operation from any one is required and serving the Summons would be done by the Court and you could also issue an News Paper advt regarding this thro your Advocate. Even if few of them gets absent in Court it would be decided Ex Parte. Discuss with your Advocate in detail.
Vijay Raj Mahajan
(Expert) 17 March 2018
NOC of sisters will help in probation court proceedings as the service of summon to all the heirs of the testator is sent by the court and if in the court any of the sister at anytime oppose the validity of Will the NOC given to you can be used as document to check their objection. The NOC should be well drafted to include all aspects that any heir can raise to oppose the Will in the court so you must get it prepared by expert , senior advocate only.
R.Ramachandran
(Expert) 17 March 2018
To begin with, in Delhi you don't require probate of a WILL.
The property in Delhi would fall either under MCD or NDMC.
You have to get the property mutated in the Municipal records (MCD or NDMC). At that time, the authorities would ask for NOC from other legal heirs. It is at that time the importance of NOC comes in. If all the legal heirs (in this case your Aunts) give NOC, then that would be the smoothest process.
However, if any of the legal heir is not coming forward to give the NOC, then one has to necessarily approach the appropriate Civil Court (in this case the appropriate District Court) to get the WILL Probated. While filing the case, the persons who have the WILL in their favour would be the Plaintiffs and those legal heirs who have been excluded (your Aunts in this case) have to be shown as Defendants. The court will issue notice to the defendants. The defendants will file their reply/written statement to the probate suit. The case will proceed as per the pleadings, evidences etc., of the parties.
Since it is a Registered WILL, the problem in getting probate should be less but cannot be completely ruled out.
Ms.Usha Kapoor
(Expert) 18 March 2018
If it is your grand mother's ancestral property she cannot exclude her daughters from the will. If it is self acquired property she can deal with it in any manner she likes it. I'd advice you all including your Dad's other 2 brothers and 2 sisters execute a Family settlement Deed and register it defining each of your shares in the family property stamped and registered properly. get two witness signatures, A Family Settlement Deed thus executed by you all is final, conclusive and binding on al of you.Or apply for probate and let the genuineness of the will come out.by taking NOC FROM YOUR 2 AUNTS IN ORDER TO FILE IN COURT..
R.Ramachandran
(Expert) 18 March 2018
@Ms.Usha Kapoor:
What is the legal basis for your saying: "If it is your grand mother's ancestral property she cannot exclude her daughters from the will."?
Please do not confound others with your confusion!
When the querist is asking about giving effect to the Registered WILL which is in favour of three brothers and which excluded two sisters, you are suggesting for family settlement between brothers and sisters!!
Ms.Usha Kapoor
(Expert) 18 March 2018
I suggested 1st try amicable settlement by executing a Family Settlement Deed registered and stamped.
If that doesn't work our then probate, protracted litigation etc.Lok Adalat amicably settles complicated issues in a jiffy and issues a binding decision which is equivalent to a civil court decree. in a jiffy.If all the 3 brothers and 2 sisters agree let them approach Lok Adalat which is attached to every District court.
R.Ramachandran
(Expert) 18 March 2018
@Ms.Usha Kapoor,
You are evading an answer.
I just wanted you to state as to what is the legal basis for your saying " If it is your grandmother's ancestral property she cannot exclude her daughters from the will."?
Dr J C Vashista
(Expert) 18 March 2018
If you are seeking obligation of experts FREE OF COST you will have to disclose your identity as per rules of this platform, no reply for an anonymous author, otherwise consult a local lawyer.
Querist :
Anonymous
(Querist) 18 March 2018
the registered will we have has clearly mentioned that which part of property belongs to which brother then why there is a probability of probate getting denied ?? i mentioned in my queryy that we are not in good terms with my aunts so they will not be providing us the NOC and they may be interested in getting some share of it ..what to do inn this situation
Vijay Raj Mahajan
(Expert) 19 March 2018
Probation of Will is definately required to use the Will and the beneficiary getting their share in the property of the deceased. Whether the property in Delhi covered under the NDMC or MCD jurisdiction that doesn't make the Will absolute and no probation will be required as has been wrongly advised. The probation of Will is the process where the Civil court decide the validity of the Will and allow its beneficiaries to enjoy the property of the deceased testator, how can anyone sitting in NDMC or MCD office say whether Will in question is valid or not, its the job of the civil court to decide this issue.
Now as far NOC of aunts is concerned, they may not give NOC but they may even not challenge the validity in the court and let the probation process complete. In case they challenge the validity of Will in the court the only ground that they may take will be that Will was got made by deceased by undue influence or force or fraud by the beneficiaries, now the relationship of the testator and beneficiaries very important aspect, these were mother and her three sons, the two daughters were not given any share in the property by the mother. The ground for daughters to challenge it that they were discriminated by their own mother will not be sufficient ground to hold the Will as invalid. The Will was registered and to state it was under force or undue influence got made and registered will also get proved wrong by the evidence of the sub-registrar who registered the Will and was witness to the fact no force or undue influence inflicted on the testator at the time of registration process, nor she complained to him that she was being forced to make such Will by anyone. All this is matter of evidence.
The old age of the testator and unfit mental condition can be another ground for challenging the Will but the medical condition of the testator at the time of making the Will be taken in consideration, if evidence of her fit mental condition even at the old age is proved in the court, this ground too will fail.
Apart from these two grounds there is no other ground to challenge the Will in question. If the 2 sisters not giving NOC now and want to challenge the Will let them go ahead with it, they wont succeed.
For Delhi Courts I'm available as I practise in these courts only.
Ms.Usha Kapoor
(Expert) 08 July 2018
I agree with my view and v9jay raj Mahajan's view.
Ms.Usha Kapoor
(Expert) 10 July 2018
I agree with VijayRaj Mahajan's view.
