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Cupid Cupid (CRM)     06 December 2017

How to take shrae in property on basis of final will?

Hi,

My parents have had their share of issues in their marriage. As aresult, my mother had filed maintenance from father, which he initially agreed to pay, only to fool my mother and to make her withdraw the case. Next, my mother filed a partioin suit. Court confirmed and an order was passed stating my mother indeed has half undevided share in the property. This order was passed in favor of my mother during November 2016. This was never contested by my father till date. 

My parents have a self-made property (house) - its not ancestral. In proprty titles of the house, ownership deatils is currently of my parents.

My mother has written her final WILL stating her half undevided share in the said property must go to me, her son. Reason, i have been looking after of her all the while.

Plese note, this final WILL is also already registered in sub-registars office.

What is the next procedure to bring my name in prorerty titles? Just on the basis of this registered WILL, is it possible to get my name registered in the said property?

Can my father sell the property without my consent?

Basically, I need know to know how I can register my name to this property? How I can prevent my father from selling this property without my consent? Do I have to publish any messge in local news papers? What will be the consequences if he succeeds to sell the house without my approval?

Thanks in advance.

 



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 8 Replies

Kumar Doab (FIN)     06 December 2017

Is testator i.e. your mother alive?

The WILL operates after death of testator.

It is believed that all of you are Hindu.

What is the nature of property say; in some Co-Op housing society?

Confirm!

Kumar Doab (FIN)     06 December 2017

 

The husband is legal heir of his wife alongwith sons, daughters.

 

Still; you may understand the provisions of personal law that applies in your case/query.

e.g; In case of deceased being Hindu

In case of Hindu Male; ClassI legal heirs have 1st right for equal share i.e.; Mother (if alive as on date of death), Wife (if alive as on date of death), sons, daughters………..

In case of Hindu Woman; the nature and source of property matters… If the property is self earned/acquired/absolute; Husband (if alive as on date of death), sons, daughters………..have 1st right for equal share.

If the property has devolved from husband; sons, daughters………..have 1st right for equal share... and if they are not available heirs of husband.

If the property has devolved from parents; sons, daughters………..have 1st right for equal share... and if they are not available heirs of father. 

 

Thus in case the property of (deceased) Hindu woman the nature and source of property may put husband into category of stranger.

The stranger can not contest the WILL.

Until or unless there is some interest e.g; debt/loan/advances etc.

 

Kumar Doab (FIN)     06 December 2017

The registered WILL is not easily set aside atleast on the counts of authenticity. Since the testator appears before registering authority in person, alongwith witnesses. The role of witnesses in case of registered WILL may also not matter, atleast on the counts of authenticity.

 

However any WILL, even if registered, can be contested by legal heirs and stranger that has interest in estate/property disposed by WILL.

If contested the WILL lands up in probate court of pecuniary jurisdiction. In that case time in probate court, appeals, court fee, lawyer’s fee, other charges/duties etc are a factor. 

Kumar Doab (FIN)     06 December 2017

If the property is in some Co-Op housing society then she may nominate you also and keep copies, duly acknowledged and updated records of society.

 

Other perspective is she may consider Settlement Deed with life rights.

Cupid Cupid (CRM)     06 December 2017

We are a hindu family.

Property is self made; titles have both my parents names registered as owners of the house.

Its an independant two BHK house and not in any co-op housing society as such.

What will be the sequectial approach for me to get my name registered in proprerty titles?

Also, what I can do to prevent my father from selling it without my consent? If he does so, what options do I have?

Kumar Doab (FIN)     06 December 2017

Youhave not replied to all points.

Your mother may inform the authority under whose property falls that she has signed a WILL and has registered it and prsue route to get the copy of his submission and action taken on it.

Kumar Doab (FIN)     06 December 2017

It is mandatory to probate the WILL in the area of Bombay, Calcutta, and Madras.

It is no mandatory to probate the WILL in the area of Delhi. 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.

 

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.

Check locally and comply with procedure.

 

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.

Thereafter obtain copy of updated mutation records.

 

It WILL is contested it lands up in probate court of pecuniary jurisdiction.

 

Kumar Doab (FIN)     06 December 2017

 

If WILL is not submitted to be acted upon then it becomes matter of succession per personal law that applies.

Although it is wrong since the WILL exists.

The authority under whose jurisdiction property falls has a set procedure for such matters if NO WILL has surfaced; Intestate Succession…….and the prescribed forms, procedure, process is available in O/o Authority and even on website. Death certificates, legal heir certificate/affidavit (per local procedure-precedence) are basic requirements. Then authority shall act upon and transfer the ownership in the name of legal heirs. Obtain copy of updated mutations records showing share of legal heirs. This grants rights equal to that of owner to legal heirs. 

 

 


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