Discrepancy in father's Will
Clayton Mendonca
(Querist) 07 February 2010
This query is : Resolved
I want a clarification about a Will.
Please advise me on my below query.
**************Beginning of Will*****************
This is the last Will and Testament of me, Mr. Jude Mendonca, son of Mr. Jaison Mendonca. I am a 75 year old Indian Christian (Roman Catholic) residing at Padil, Mangalore City .
1. I leave behind the following:
a) John Son
b) Peter Son
c) Walter Son
2. I leave behind the following assets.
Immovable property consisting of two plots, plot A and Plot B in Padil, Mangalore City
Plot A: 5 cents in Survey No. 245/43
Plot B: 5 cents in Survey No. 245/89
3. My son John has helped me financially always in the past. Hence I have decided to give John the first Plot A. The remaining assets I have decided to bequeath to my other two sons.
Accordingly I bequeath my property as hereinafter stated.
4. I bequeath my property as follows:
a) I bequeath to my son, John the Plot A.
b) I bequeath my remaining property consisting of the Plot B to my two sons viz. 1. John and 2. Peter.
5. I appoint my friend Domnic D’Souza aged 35 years, son of Elias D’Souza residing at Padil, Mangalore as the Executor of my Will.
I am a totally illiterate person. But I have executed this Will after it was prepared as per my instructions and translated to me in Konkani a language known to me. I am of sound disposing state of mind. The under mentioned witnesses have attested this Will in my presence and in the presence of each other today, 24-June-1995, at Padil, Mangalore.
Left thumb impression of Jude Mendonca
Witnesses:
1. Mr. Ronald Mascarenhas, 48 yrs, Joe Villa, Padil, Mangalore.
2. Mr. Simon Pinto, 52 years, Ferns Cottage, Padil, Mangalore.
**************End of Will**************
1) The above is an exact copy of the Will made by Mr. Jude Mendonca, who has died.
2) As per the Will, there is no dispute about Plot A. Plot A will go to John.
3) The dispute is about Plot B.
i) According to John, Plot B should go to John and Peter as mentioned in Clause 4b of the Will. (Walter should get nothing).
ii) According to Walter, Plot B should go to Walter and Peter as the testator’s intention about Plot B is very clearly mentioned in the Preamble in Clause 3 of the Will. (Hence I have decided to give John the first plot A. The remaining assets I have decided to bequeath to my other two sons). The “other” clearly excludes John as a legatee to Plot B and the testator has inadvertently put John’s name in Clause 4b (instead of Walter’s).
5) I was going through the Indian Succession Act 1925 and found the following:
Section 76: Misnomer or misdescription of object.
(1) Where the words used in a will to designate or describe a legatee or a class of legatees sufficiently show what is meant, an error in the name or description shall not prevent the legacy from taking effect.
(2) A mistake in the name of a legatee may be corrected by a description of him.
Illustrations
e.g. The testator, having six grandchildren, makes a bequest to "my six grandchildren" and, proceeding to mention them by their Christian names, mentions one twice over omitting another altogether. The one whose name is not mentioned will take a share with the others.
6) Based on my layman interpretation of Section 76 of ISA 1925, the Plot B should go to Walter and Peter as the testator’s intention is absolutely clear in the Preamble in Clause 3 of the Will.
7) Please get back to me with answer to the following query:
(i) Should the Plot B go to John and Peter?
Or
(ii) Should the plot B go to Walter and Peter?
B K Raghavendra Rao
(Expert) 07 February 2010
While reading the will, it should be read in totality and not in parts. The intention of the testator would be made known only then. Here, the testator has expressed himself clearly in para 3 that he has decided to bequeath Plot A to John as he has financially helped his father. He has decided to bequeath the remaining assets meaning Plot B to his other two sons. The entire will has to be understood in this premise. However, while mentioning he names, he might have erred. Therefore, John would not get any share in the Plot B. It should go to Peter and Walter.
A V Vishal
(Expert) 07 February 2010
The plot B goes to Walter and Peter, you are right according to the provision of law cited by you.
Sachin Bhatia
(Expert) 07 February 2010
The plot B goes to Walter and Peter
Clayton Mendonca
(Querist) 07 February 2010
Thank you Adv. B. K. Raghavendra Rao and Adv. A V Vishal.
Some more facts in the case:
1) Mr. Jude Mendonca was a totally illiterate man (actually he was a wood cutter) and was 75 years old when he made the Will in 1995.
2) Mr. Jude died in 2000 at the age of 80 years.
3) The first witness of the Will, Mr. Ronald Mascarenhas is an Advocate and a Notary and the second witness was a clerk working in the Advocate’s office.
4) Adv. Ronald was the writer of the Will. We met him personally and he mentioned that Mr. John (the legatee who got the major portion of the testator’s asset) had accompanied the testator Jude in 1995 when the testator dictated the Will in Adv. Ronald’s office.
5) Adv. Ronald says that he wrote the Will just as the testator Jude had dictated to him. (We are still wondering how an Advocate can make such a huge mistake in the wording of the Will. In fact, even he is surprised).
6) All the family members now believe that Mr. John must have put some undue mental pressure on the illiterate, old man and coerced him to dictate the Will to Adv. Ronald.
7) There is no proof that John had helped his father, Jude financially. In fact, all the three sons used to pool in the money to feed the father and the mother too till 2000.
8) In fact, the mother was taken care of by Walter and Peter from 2000 (the death of Jude) to 2005 (the day the mother died).
9) Based on the above facts, it looks like John wanted to usurp a major portion of the father’s assets (the whole of Plot A and half of Plot B) without giving anything to Walter.
10) All family members believe that both the Plots (plot A and plot B) should have been divided equally among all the three sons and that John’s intentions are very suspicious.
11) John had kept the Will hidden with him and he brought the Will out in the open only in 2005 after the mother’s death i.e. five years after the death of the testator.
12) None of the legatees (other than John) knew that the Will existed till it was brought in the open by John in 2005. This fact also makes the Will suspicious.
I have the following queries:
1) Do the above facts make the Will look suspicious? Can we file a case in Court to declare the Will as null and void?
2) Was a Doctor’s medical certificate required…remember John was 75 years old when he made the Will. How can one prove that Jude was of sound disposing state of mind when he dictated the Will?
3) Can a writer of the Will also be a witness to the Will? Remember that the testator was a totally illiterate 75-year old man and a woodcutter. How could he understand anything written in English, even if it was translated to him?
4) Can the Will be kept hidden for 5 years after the death of the testator by John, the biggest beneficiary of the Will. Does this act itself not look extremely suspicious?
5) John is also trying to usurp Walter’s share by saying that actually the testator wanted to give half of plot B to John himself based on the final Clause 4b.
6) A learned Advocate himself has made a major blunder while writing the Will. How do you expect an old, illiterate woodcutter to understand a Will written in English?
Based on the above facts, my personal view is that the Will was doctored by John and should be quashed by the Court.
What are your conclusions or comments?
(By the way, this is an actual case and not a theoretical one).
Thanks in advance once again and regards,
Clayton Mendonca. B.Tech Electronics Engg, IIT, Bombay
email addr:cmomlm@yahoo.com
Clayton Mendonca
(Querist) 07 February 2010
Thanks a lot to Adv. Sachin Bhatia also.
Clement Mendonca.
Raj Kumar Makkad
(Expert) 07 February 2010
walter and peter only and john has nothing to do in the given facts.
B K Raghavendra Rao
(Expert) 07 February 2010
Whatever you are saying is only your oral version which may be true or false. What matters is the expressions written in the will and its meaning.
Moreover, the will cannot be changed now even if your version is true. Only Walter and Peter get the property B under law.
Clayton Mendonca
(Querist) 09 February 2010
Dear Adv. Raghvendra Rao,
Thanks for the information.
But I will tell all of you some more actual facts in this case.
1) John had the Will probated in the Mangalore District Court.
2) Walter hired a lawyer and disputed this Will.
3) Walter’s lawyer was bribed by John. Walter’s lawyer did not attend the court to fight the case and the judge probated the Will. Walter is an illiterate man and therefore did not follow the case. He believed his lawyer totally and did not follow the case and do due diligence.
4) Based on the probate, John changed the RTC of Plot B to his and Peter’s name.
5) Walter was unaware of this fact. His lawyer kept on telling him that the case is still going on and that he should not worry. But actually the judgement and decree was already done.
6) Walter has become desperate and wants to commit suicide.
What can be done now?
1) Can Walter file a case against his lawyer? It is very clearly mentioned in the judgement that Walter’s lawyer did not attend the court even once and therefore the judgement was given by the Judge without hearing the defendant.
2) Walter also wants the Will to be declared null and void, as can be seen from all the above facts. The Will was doctored by John to usurp the maximum share of the father’s property and to disinherit Walter totally. Can he do so based on all the above facts?
3) Since it is more than two months since the court verdict was given, can Walter still appeal to the High Court against the probate?
4) Walter wants all the three sons to get equal share and therefore declare the Will null and void. Remember the father was an illiterate old woodcutter aged 75-years old when the Will was made. What are the points on which Walter can fight the case to declare the Will null and void?
All of you lawyers, please give me a solution and answers to the above four queries.
As I have said, this is an actual case and not a theoretical one and your suggestions will help me to fight for Walter.
Thanks to everybody in advance and warm regards,
Clayton Mendonca. B.Tech Electronics Engg, IIT, Bombay
Clayton Mendonca
(Querist) 14 February 2010
Please ... I need some suggestions.
1) As per Johns interpretation of the so-called forged Will, John has taken 7.5 cents, Peter 2.5 cents and Walter nothing.
2) Even if John gives Walter his share,which looks very doubtful,as per the so-called Will, John will have 5 cents, Peter 2.5 cents and Walter 2.5 cents.
3)But, if the Will is declared as null and void, all three of the brothers will get 3.33 cents each.
Option 3 is the best for the sake of justice and also to teach John a lesson not to usurp other peoples share.
Please give some practical suggestions.
Thanks for your understanding and regards,
Clayton Mendonca
Clayton Mendonca
(Querist) 21 February 2010
Dear Experts,
Any suggestions?
Thanks in advance and regards,
Clayton
