Will deed partly infructuous. how to proceed?

Venkat (Querist) 08 May 2024 This query is : Resolved
Dear experts:

I am asking this query on behalf of my friend. A will deed (unregistered) was executed by the deceased testator bequeathing her A, B, C, and D schedule properties to her four children (two sons, two daughters) equally. i.e., Property A to Son S1, Property B to Daughter D1, Property C to Son S2 and Property D to Daughter D2.

While the testator was alive, she executed a registered gift deed in favour of S1 and D1 to the same extent as in the bequeathed will deed (i.e., A to S1 and B to D1).

Now the problem is, while D1 has given her consent to executing the will deed so that S2 and D2 get their share (properties C and D), son S1 is not agreeing to give a "no objection" letter.

The questions now are:
What is the fate of the will deed? Would it be valid now?
How to proceed legally so that the court declares the properties mentioned in the will deed for S2 and D2 belong to them?

Advocates hired were also not sure how to proceed in this abnormal situation, which is why advise from learned experts here is sought.

Thank you very much in advance,
Best regards,
Venkat

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T. Kalaiselvan, Advocate (Expert) 08 May 2024
There is no abnormality in this neither to be confused.
The law is clear that the Will is executable to the extent of the property existing at the time when the Will came into force.
Thus the properties allotted to S1 and D1 do not exist at the time of the enforcement of the Will, and the said beneficiaries have already acquired their respective share in the property by a registered gift deed, they will not be entitled to any share in the property that do not exist at the time of executing the Will.
Thus the option before the other beneficiaries is either they can file a probate petition to get probate of Will or to declare their title as per the Will as on the date of enforcement of Will.

P. Venu (Expert) 09 May 2024
Yes, S 2 gets the legacy C and D2 gets D. There is no incongruous situation. The property could be got mutated in favour of the beneficiaries through the due process.