will-probate etc.
AJIT KAWATKAR
(Querist) 02 August 2009
This query is : Resolved
A widow without any issue died in 2003 living a will-{not probated] the contaents has two parts 1]the ownewship flat she was living has been bequethed to her brother's son where no executor is mentioned . In the 2nd portion &to her other movable &immovable pptys. she has mentioned the name of her sister-in law as executer.the original will is with the executor.The benefishier is having possession of the flat &now wants to despose-off the ppty.but cannot because of pending Probate. It seems the executor seems nether interested in giving the original will nor ready to accompany for lodging it in for probate. kindly suggest the way-out.
A V Vishal
(Expert) 03 August 2009
According to Section 222 of the Indian Succession Act, 1926, Probate shall be granted only to an Executor appointed by the Will. The appointment may be expressed or by necessary implication. In the absence of the Executor being named in the Will, the Legatees or the Beneficiaries under the Will could also seek probate of the Will, subject to having atleast a copy of the will. However, your query is silent on whether the will is registered or not,if it is, then the beneficary may apply for a certified copy of the same for obtaining the probate and also further you state part two of the will mentions the deceased testator's sister in law as the executor of both the moveable and immoveable property, hence the entire contents of the will have to be read in relation with each clause jointly and not separately. In my opinion the Sis in law is the executrix of the will and probate can be applied and granted only to her.
