Pankaj Sharma 04 August 2018
Me and my mother bought a plot in 1999 and constructed the house in 2002 with 50:50% share of both of us. Now my mother died recently and written a will which states that her 50% share shall be given to my father till he is alive and later to be transfered to me after his death. Can my father write a will and give it to anyone his 50% share he got after my mother's death.
R.Ramachandran (Advocate) 04 August 2018
Your father is not the absolute owner of the 50% share and therefore he will not be able to make any WILL in favour of anybody. The WILL made by your mother will prevail. Get probated the WILL made by your mother. Thus, it will form a court record and will stand you in goodstead in future.
Kumar Doab (FIN) 10 August 2018
Although you have not posted clearly that sale deed itself mentions the ownership of 50% each.
Still if sale deed is on two names then IT implies equal to both i.e. 50%.
If IT is narrated in any deed/agreement and even WILL that 50% for construction is born by both separately then IT is good.
Succession opens on date of death; by inheritance or by testamentary succession (by valid WILL as in your query).
If the WILL is valid then IT has to be acted upon, without any cloud on IT.
IT is mandatory to probate the WILL in the areas of Bombay, Calcutta, and Madras.
It is not mandatory to probate the WILL in other areas. It is not mandatory to register the WILL.
The WILL should just be valid. Unregistered WILL can be acted upon.
The last valid WILL prevails.
Kumar Doab (FIN) 10 August 2018
The authority under whose jurisdiction property falls has a set procedure for such matters if the WILL has surfaced; Testate Succession…….and the prescribed forms, procedure, process is available in O/o Authority and even on website. Certified copies of the WILL, death certificate, legal heir certificate/affidavit (per local procedure/precedence) are basic requirements. The authority may ask for NOC from legal heirs (other than beneficiary) and/or to release newspaper advt and/or may write to legal heirs to submit their objections if any within set time.
If there is NO contest to the WILL by any legal heir then authority shall act upon the WILL without any cloud on it and transfer the ownership in the name of beneficiary.
If WILL is contested it lands up in probate court of pecuniary jurisdiction. The court shall decide on validity of WILL.
The legal heirs may also consider perspective of registered family settlement after the WILL and register it.
Check locally and comply with procedure. Thereafter concerned official in the O/o Authority e.g; Patwari, shall act upon the matter and transfer the ownership by inheritance/probate in the name of legal heirs in mutations records.
Thereafter obtain copy of updated mutation records.
Check locally for compliance with procedure.
Kumar Doab (FIN) 10 August 2018
Last wish of testator as in valid WILL is supreme.
The courts are sensitive towards executing the last wish of testator.
If your father writes a WILL as in your query, It should not succeed for the property as mentioned in your query.
In any case being legal heir you should get notice when a WILL is to be acted upon without any cloud on IT or for probate.
You shall get opportunity.
Approach in person a very able senior LOCAL counsel of unshakable repute and integrity specializing in Testamentary/Civil matters and well versed with latest citations, LOCAL applicable rules/laws/ … and having successful track record…. and worth his/her salt…..and share inputs /show the documents/evidence for a considered opinion..
At each location three are some counsels that specialize in such matters and they are well known.
Check for such counsels at LOCAL civil courts, HC, SC……
Is the WILL registered?
Are the witnesses unshakable?
A registered WILL is not easily set aside atleast on counts of authenticity.
Kumar Doab (FIN) 10 August 2018
The WILL can be registered after death as well.
Go thru;
THE REGISTRATION ACT, 1908;
31. Registration or acceptance for deposit at private residence
40. Persons entitled to present wills and authorities to adopt
42. Deposit of wills
GO thru;
Delhi High Court Moti Ram vs Rittoo on 17 September, 1968 Equivalent citations: AIR 1969 Delhi 134, 4 (1968) DLT 586 Bench: H Hardy
IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 1303/2013 BACHITA BARUAH ..... Petitioner Through:Mr.Rahul Shukla, Advocate Versus GOVT OF NCT OF DELHI & ANR ..... Respondents Through:Mr.Nitin Saluja for Mr.Najmi Waziri, Standing Counsel, Govt. of NCT of Delhi. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE V.K. JAIN
Kumar Doab (FIN) 10 August 2018
Your father can write and sign a WILL.
The probable fate of the WILL is as per laws, rules that apply to WILL.
A WILL is mere piece of paper until IT is duly acted upon without any cloud on IT, or probated.
IT i.e WILL, as in your query, may be not even thre worth the piece of paper on which IT is written.
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