Will creation
ekta
(Querist) 31 August 2014
This query is : Resolved
Dear Sir,
My friend has one will of her step mother who died in 1973 and the will was witten by her in 1972.
Will is written by her in favour of his husband for all immovable property that she had that time.Now the problem is will was written on simple watermark paper by one writer under his signature and witnessed by two persons known to him.Will is neither on stamps paper nor registered by any Govt Office or Court.
Father of my friend is alive yet.Now He want to sale the property.
The family position of my friend is, she has one step sister who is about 60 years old and married 35 years ago.
My friend are 2 sisters with same mother.
What is the authenticity of that will,How it can be utilised at the time of selling and what problems may arise in selling that property?
Please Guide me.
Laxmi Kant Joshi
(Expert) 31 August 2014
The will is valid , ask your friend to get execute it in his favour and then sell it .
Anirudh
(Expert) 31 August 2014
You say:
"Now the problem is will was written on simple watermark paper by one writer under his signature and witnessed by two persons known to him.Will is neither on stamps paper nor registered by any Govt Office or Court."
1. Do you mean to say that the WILL was not signed by the step mother of your friend?
2. Whether the property has been WILL in favour of the husband absolutely, or any other conditions attached (like that he can use it during his life time and thereafter the property will go to ..... etc.)?
3. Whether the 60 year old is the daughter of the step-mother?
4. Whether the 60 year old sister has any objection in her father selling the property?
ekta
(Querist) 31 August 2014
Hello Anirudh Sir..
Thanks for prompt reply.
Will is signed by my friend's step mother and she delclaired him as sole n absolute owner of property.
His father's 60 year old daughter may create the objection in selling property.
My question is to ask the validity of that will upto what extent? And how she can use the will.
Is it necessary to get will registered in 1970?
Anirudh
(Expert) 01 September 2014
If the lady had died in the year 1973 leaving a WILL, then one is expected to get the will executed and the property mutated in the name of the beneficiary.
Now after nearly 40 years, if some one has to spring the WILL, naturally the 60 year old daughter who is otherwise a legal heir of the deceased lady, will raise objection.
It is not clear whether the witnesses are still alive and available. Any way, the husband of the deceased lady will have tough time in proving the WILL. In case the 60 year old daughter objects, then only after successful proving of the will (or getting it probated in his favour) the husband of the deceased lady will be in a position to sell the property.
Dr J C Vashista
(Expert) 01 September 2014
Execution of will donot require to be made on a stamp paper, rather it is written on plan paper (without stamp duty).
If either of the two winesses are alive and able to authenticate the signature of testator (your friend''s step mother)it can be mutated.
Even otherwise, it is valid, if no objection has so far been raised by either of her LRs and her husband (the beneficiary) is competant to dispose it of in any manner whatsoever.
ajay sethi
(Expert) 01 September 2014
agree with MR anirudh
Rajendra K Goyal
(Expert) 01 September 2014
The will is valid. Objection from daughter may not valid.
malipeddi jaggarao
(Expert) 01 September 2014
I agree with the advice of expert Mr.Anirudh.
ekta
(Querist) 01 September 2014
Sir please guide me what is the procedure for probation of will?
Anirudh
(Expert) 03 September 2014
You have to file a case before the Court for probate of the WILL.
In the probate petition, you have to mention as opposing party all the legal heirs.
The legal heirs will get a notice.
They have to submit their reply/objection.
After going through the entire documents, objections etc., the Court will decide whether to authenticate the WILL or not.
You have to approach a local lawyer for this purpose.
Dr J C Vashista
(Expert) 03 September 2014
Very well advised by expert Mr. Anirudh, I fully agree and appreciate his opinion.
Just to add to the above, the state shall also be a party and the notice of petition will have to be published in newspaper for objection(s) if any.
ekta
(Querist) 04 September 2014
Is probate of will necessary? Is it not valid Without probation ?
ekta
(Querist) 04 September 2014
Is there any option available in which my friend's 60 year old sister need not be involve?
T. Kalaiselvan, Advocate
(Expert) 04 September 2014
Once you get a probate granted on the Will, you can very well get possession of the property and registered on your name, mutate it transfer all the revenue records, hence probating the Will is essential at this stage.
Anirudh
(Expert) 05 September 2014
Put yourself in the position of 60 year old sister.
Will you agree to give effect to the WILL without your knowledge (if you happen to be that 60 year old sister)?
The Court will look into this aspect. Anything done short of probate of the WILL, would be questionable.
Dr J C Vashista
(Expert) 05 September 2014
You have adequatly been advised, FREE OF COST, proceed accordingly or engage a local lawyer.
