muthusamy (retired govt.servant) 17 January 2009

Will

My father after writing his will in the year 1956 had purchased a property in the year 1960. He expired in the year 1961. In the will he has stated that the properties that he would purchase during his life time after writing the will should belong to the five son's of his second wife. My two elder brothers ( plaintiffs) approached the court for partition of the properties. I claimed 1/5 th share and had paid the court fee for the same. But the lower court raised a speculation that how could the will state about the schedule property which was purchased in the year 1960 while the will was written in the year 1956 and rejected the suit on that ground and also for not joining the necessary party ( i.e, the elder son of my father's first wife who is alive) . Is there any provision in the law of will that the testator should not mention about the properties that he might purchase after writing the will . I have approached the high court and hence please give me some grounds of appeal or judgement to similar case. Thanking You in anticipation. In the will he has stated that all the properties are his self earned properties and there is no any ancestral properties.

Reply Follow

7 Replies

Solicitor Chirag Shah (Advocate & Solicitor) 19 January 2009

As per my views, any property which is not mentioned in the will by testator will be divided as per the Testation Law Applicatble to him/her.

Will is basically prepared to devide and transfer the estate as per the wish of the maker/ Testator. Will is applicable to particular properties or estate mentioned in the Will itself.

one can (Testator) make a codicil to add or alter any clause of the Will.

Go through the will and see is there any providion about property purchsed during his Life Time or about any Remaining Estate which is not included in the description of Property.

Go through properly you will get the solution.

For any help feel free to email me at --- adv.shah@hotmail.com ---

muthusamy (retired govt.servant) 19 January 2009

I have enclosed a reply from Mr. sanjeev desai

Dear Muthuswamy,

In my view of the said Will is void, "executor at the time of execution of will do not has any thing he can't bequeathed any thing"

Court presuming that "one who do not has anything he cant has right to give anything"

Absolutely, after the demise of your father his all legal heirs have the right to the Properties which were acquired by him including son of first wife.

if i found any case laws in this regard i will forward you...

sanjeev desai.

Kindly give your opinion to my email address pearlsawme@yahoo.co.in .

Thanking you

muthusamy (retired govt.servant) 19 January 2009

Respected Chirag shaw, I read your private message and I hereby thank you and I will follow your valuble guidance.

Adv.Shine Thomas (Advocate) 20 January 2009

It is necessary that the bequathed property should be in existence at the time of the death of the testator.It need not be in existence at the time of exicution of the Will.So in my view, the will is a valid one.

P.Muthusamy (Retired Senior lectureu (Technical Education)) 24 January 2009

Thank you very much for your reply.

Sushil Kumar Bhatia (Advocate) 27 January 2009

Dear,

In my view the said WILL is valid for those properties which were purchased by executant before execution of will those properties purchased by him after execution of WILL is not covered by the said WILL and all heirs have equal shares in the property left by the father without any instrument.