Registered will valid or not?
sunny
(Querist) 01 July 2012
This query is : Resolved
Dear Sir/Madam, Kindly advice.
We are 3 brothers/4 sisters. There is a registered will from my mother in my name registered in 2004 with 2 witnesses. My mother passed away in 2005. I didnt transferred the property in my name till yet. My brothers have shown some sign of interest in this property, as they are unaware of the registered will. Its a freehold property. 1.)Can i transfer the property in my name by mutation?? 2.
) After mutation, if the property is transferred in my name,can i sell it??
Kindly advice.
Devajyoti Barman
(Expert) 01 July 2012
1. Yes but before that you need to take Probate of Will specially if taking Probate is mandatory for your city.
2.Mutation or no mutation once you take Probate of the Will you would be free to transfer the same.
Mutation does not create any title in the property, it is a mere Record for Revenue.
SAINATH DEVALLA
(Expert) 01 July 2012
Section 213 (1) of the Indian Succession Act, 1925, inter alia states that a legatee’s (a person who inherits under a will) right to property bequeathed in a will cannot be established in a court, unless a court of competent jurisdiction in India has granted a probate of the will under which the right is claimed or letters of administration with the will annexed thereto have been obtained.
In the present case, it is imperative that you get your mother’s will probated as without the same your right as a legatee will not be established. In the event that your mother has not appointed an executor under her will or the person appointed as an executor expired before your mother or where the executor refuses to act as such, then you would have to apply for letters of administration.Grant of a probate establishes conclusively the legal character of the person to whom it was granted. It also conclusively decides that the will was genuine and validly executed and that the testator has the testamentary capacity to execute the will (was of sound mind and was not forced to make the will).
The process of obtaining a probate normally takes six-eight months. However, if anyone disputes the process or challenges the will, then the petition will be converted into a suit and will take much longer, even a few years. Court fees would have to be paid on the probate petition and this would depend on the value of the property that has been set out in the will.
V.Mahadevan
(Expert) 01 July 2012
To stem any prospective litigation from the kith and kin and to safeguard ones interest in the property, probate is the cautious route open, as so well brought by Shri Devalla.
mahadevan
K.K.Ganguly
(Expert) 01 July 2012
Get probate for the Will first. Once you get probate of the Will which means putting legal seal on the Will, you can do anything with the property.
sunny
(Querist) 02 July 2012
Thank You so much for the inputs, but i need to ask if i put it on probate, any of my brother or sister can have objection and ask for their share. My both brothers have properties in their name, it is only this property i've got. what is the best way to get the property probate without notification to any of my siblings. kindly comment..
Sanyam Malhotra
(Expert) 02 July 2012
that is not possible. it is a matter of procedure. in all likelihood court will issue notice to kin of deceased to see if there are any objections.
V.Mahadevan
(Expert) 02 July 2012
The grant of probate (means a copy of the Will certified under seal of a court) by a competent court (ON FULFILLMENT OF THE CONDITIONS/ RULES LAID DOWN BY STATE GOVERNMENT) is conclusive evidence of the testamentary capacity of the person who made the Will (the last Will), its genuineness,the validity and its due execution.
Stamp paper equal to Court fee should be filed by the petitioner.
Hope and trust the querist fears are laid to rest!
mahadevan
Dr J C Vashista
(Expert) 02 July 2012
I concur the veiws of Mr.S. Devalla as he has explained much more than required by a layman.
Apply for probate through local lawyer, if your late mother has not executed any other will and this is the final, also take care of limitation.
Best of luck.
sunny
(Querist) 07 July 2012
This is the final registered will. If i apply for probate, how many chances do i have to have this property in my name only.??
