Property and will query

Dear Peter,

Please understand very clearly.

Just because you are low paid, are you ready to forego your rights flowing from the Registered WILLs?  I think certainly NOT.

Therefore, if you have to get your legal rights, naturally you may have to spend money (of course reasonable money nor exorbitant money) towards Lawyer's fee.

Therefore, you have to approach a lawyer who can charge you reasonably.

Things to do:

1. You have to file a case in the District Court within whose jurisdiction the property falls, for Probate of the WILL.  Upon filing the petition by you, the Court will issue notice to all the legal heirs of your parents to ascertain their objection if any.  Then you will be given opportunity to give your reply to the objections filed by the other legal heirs.

2. If there are no objections from other legal heirs, then the Court will grant Probate of the WILL in your favour. (You should not have any difficulty since the WILLs are Registered.  It is very very difficult to challenge the Registered WILLS unless one is able to successfully establish fraud, coercion, undue influence etc., in obtaining the Registered WILL).

3. After obtaining the probate of the WILL, you have to take steps to get possession of the property, by filing Execution Petition.  

Without following the above process, it will be very difficult for you to get the property from your brother.  Therefore, even from within your low income, try to take out some money for lawyer's fee and take legal steps without wasting time.

(Whether your brother is married, Well-off or not etc., are not relevant.  In there was no WILL left behind by your parents, then the property ought to have been divided equally between you and your brother.  Fortunately for you, your parents have left the Registered WILL giving the entire property in your favour.  But, presently you are not in possession of the property. Therefore, you have to take legal steps to get the property.)

Thank You Advocate Shree Ramachandran. I really appreciate your help.

I was under the impression that with his money he can hire expert lawyers & drag out the process till I am broke monetarily & emotionally.

I also read somewhere that I have to go through some name transferring & legal heir certificates & bunch of other processes before going for probate to have him vacate the property.

Then I was told that in Gujarat, you don’t need a probate if you have registered will.

So I am totally confused.

Kindly clarify.

Thank You Sir

The succession opens on date of death of owner of property, as per provisions of personal law that applies..

You have clarified that you are all Hindu male..

It is believed that all other involved were also Hindu.

Since testator (owner) has died the Valid (WILL) should surface and see the light of day….

The process and procedure to get share updated in mutation records (by any mode say; WILL, inheritance..) is simple.

The authority under whose jurisdiction property falls say ;MC……..has a set procedure for such matters if 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 all legal heirs (other than beneficiary) and/or release advt in newspapers inviting objections if any and/or  write to legal heirs to submit objections if any in a set time….

If contested WILL lands up in probate court of pecuniary jurisdiction and court shall decide the matter…

Any WILL can be contested…………….even registered WILL….

It is not mandatory to probate the WILL in Gujarat…

But if contested by legal heirs the WILL is probated by court and decided as genuine and without any cloud on it and last wish of deceased testator is acted upon.

The last wish of testator in last valid WILL is supreme.

If NOC is submitted/NO objections are/not raised………….or matter is decided by jurisdictional courts …. the authority shall update share as per provisions of WILL /personal law that applies in mutation records.

By the updated mutation records the legal heir(s) attain rights equal to that of owner and can enjoy/dispose the property/share like owner.  

The beneficiary should avoid delay to act upon the WILL.

The registered WILL is not easily set aside atleast on counts of authenticity.

If other legal heirs are unwilling to sign NOC and consent to WILL  then you can consider perspectives….

Submit the certified copy of WILL to authority and avoid delay………….ultimately other legal heirs are unwilling the probate is required…Since the WILL is registered IT may sail thru per facts and merit presented before court…

If other legal heirs are aware of the registered WILL ask to vacate in gentle and amiable manner….

Settle the matter amicably and register the deed e.g; Family Settlement deed by narrating the WILL in IT.

Please clarify whether the Apartment is self acquired or ancestral.

Shri Ramesh Singh

Dear Sir

I don't feel it necessary to refer to my New Oxford Dictionary of English.     I had a doubt whether the Apartment was bought by the parents of the Questioner or bought by the grandparents of the Questioner.      Also I had a thought that Apartments can be bought or sold.

Excuse me if I'm wrong.

Assuming that NOC is not signed by legal heir(s) in favor of beneficiary…………..as per your own post……and assuming for a moment ………… the WILL was not left by deceased parents.

Being ClassI legal heir you are eligible for equal share….

In case of Hindu male that has died without disposing self acquired property owned by him by a valid/registered deed/WILL; The 1st right for equal share is of his ClassI legal heirs i.e Mother ( if alive as on date of death), Wife ( if alive as on date of death), sons, daughters……….. The share in ancestral property devolves upon his legal heirs.

In case of Hindu woman the nature and source of property matters.

In case of Hindu woman that has died without disposing property owned by her self acquired/absolute property/estate by a valid/registered deed/WILL; The 1st right for equal share is of her legal heirs i.e Husband ( if alive as on date of death), sons, daughters………..

If the property is acquired from parents side the 1st right for equal share is of her legal heirs i.e sons, daughters………..and in their absence legal heirs of her father.

If the property is acquired from husbands side the 1st right for equal share is of her legal heirs i.e sons, daughters………..and in their absence legal heirs of her husband. The property from mother’s side is not ancestral.  

You can determine the share of each legal heir accordingly………….

Take possession of your share…..to begin with and maintain irrefutable written record….asking for possession.

If other legal heirs are aware of the registered WILL ask to vacate your share in gentle and amiable manner….and maintain irrefutable written record…Although as per your own post it has been denied and half share is being demanded despite the registered WILLs in your favor..

This may help to claim mense profits later if wanted and required for use of share of other legal heirs e.g; You………

Mere WILL even if registered, does not confer any ownership until or unless it is acted upon without any cloud on it and beneficiary becomes owner.

Had IT been some other deed say; Gift/settlement/sale  deed etc the situation could have been somewhat different.

The cases in court are contested on basis of say; coercion, pressure, intimidation, property being ancestral etc etc…….. 

1st thing 1st; Obtain mutation record with all link docs from the O/o authority under whose jurisdiction property falls say; MC and determine who was 1st owner and whether the property in the hands of 1st owner amongst forefathers was self acquired or ancestral and also on strength of which documents the ownership was effected for parents (Father and Mother) ………and there was NO defect in title and confirm if the bequeathed property was self acquired/absolute………..

The nature of property that devolves by inheritance, WILL, partition etc etc is; self acquired.

Thus you would have 1st hand feel that your feet are on firm ground and your case is weak on technicalities or not….and you can convince the court or not…

It shall be appropriate to seek proper legal opinion by showing all docs on record to a very able senior LOCAL counsel of unshakable repute and integrity specializing in testamentary/succession/civil matters having successful track record………..for a considered opinion……….on the nature of property, WILL shall stand the test of law or not, time taken, funds required…. Etc etc 

Other Perspective;

-If you don’t want to………. or don’t have time/funds for expected litigation,…………..you can negotiate with other legal heirs and settle the matter amicably and/or by registered family settlement deed ( narrating both Will)  and register it……………….

-It is upto you to agree or not to the entire demand(s) of other legal heirs….

-If you are not having funds try to approach DLSA for free legal aid….. and check if you are eligible for your matter.

-Request a very able cousel to give you discount in fee..