Regarding will
PUNIT
(Querist) 15 March 2014
This query is : Resolved
DEAR SIR/MADAM,
I AM PUNIT KUMAR FROM RAJASTHAN HAVE A QUESTION ABOUT WILL .
WE ARE THREE SUCCESSOR OF MY FATHER ie ME, MY SISTER AND MY MOTHER.
CAN YOU PLEASE HELP ME ABOUT WILL ?
1. MY GRANDFATHER MADE A WILL IN 2006, IN WHICH HE MADE BENEFICIARY TO MY FATHER ALONE (NOT SECOND OR OPTIONAL BENEFICIARY CLAUSE ADDED).
2. MY FATHER LEFT US IN 2009 AND WILL WAS NOT ALTERED.
3. MY GRANDFATHER LEFT US IN 2013 WITHOUT CHANGED ANY THING IN WILL.
4. NOW ACCORDING TO INDIAN LAW OF WILL, WHO WILL BE BENEFICIARY OF WILL?
IS WILL BE VOID ? AND ALL MY UNCLE AND BHUA (SUCCESSOR OF MY GRANDFATHER) WILL BE BENEFICIARY EQUAL TO US?
5. PLEASE PROVIDE LEGAL RULE AND ACT SUBSECTION SO THAT I CAN PRODUCE IT AS REQUIRED,
PLEASE HELP ME I WILL BE VERY THANKFUL TO YOU.
PUNIT KUMAR
9828711027
Devajyoti Barman
(Expert) 15 March 2014
Did your grandfather make such Will in respect of his self acquired property.
If so, then your chacha and bua have no claim on the property.
For legal rule and act, read Hindu Succession Act.
Dr J C Vashista
(Expert) 15 March 2014
I agree with the expert advise of Mr. Devajyoti Barman.
ajay sethi
(Expert) 15 March 2014
what do you mean your father left us in 2009 ? did he die in 2009 ?
if your father died in 2009 and your grand father died in 2013 is there any clause in the will that in the event my son predeceases me property shall devolve on ___. is there any residuary clause in the will ?
it is necessary to go through the will drafted by your grand father . if there is no clause in such a case bequest made in favour of your father lapses and property shall devolve on all the legal heirs of your grand father
in other words your father share will devlove on you , your mother and sister .
your uncle bua will also have equal shares in the property .
Biswanath Roy
(Expert) 15 March 2014
Absolutely correct opinion of Mr. Ajay Sethi I agree with him.
Guest
(Expert) 15 March 2014
Well advised by Shri Ajay Sethi.
Biswanath Roy
(Expert) 15 March 2014
Although I agreed with the views of Learned Mr. Ajay Sethi yet I need to add some thing more to it which is as follows:-
WILL MEANS intention of the TESTATOR. If in the subject will the testator expressly states why he is not intending to bequeth his property to his daughters or any other person of his family and expresses specifically why he chooses his son as sole beneficiary of his property or the deceased testator wrote in his will that his son shall enjoy the property with his family members including his sons and daughters forever then inspite of the fact that your father pre-deceased the testator viz., your Grand father, the property of the testator shall automatically devolve upon the family members of the deceased beneficiary viz., your father. If in case said conditions are not appearing in the will of your grand father then a legal question will arise that although the beneficiary of the will predeceased the testator for long four years why the testator did not make a second will? Does it impliedly establish his intention that let the benefits of the will be pass over to the family members of the deceased beneficiary viz., your late father?
prabhakar singh
(Expert) 15 March 2014
What Mr.Sethi talked about is called DOCTRINE OF LAPSE:At common law, if a person is a beneficiary under a will, but does not survive the testator, the gift fails. This is known as the doctrine of lapse.
The doctrine is said to be ‘founded on the view that a testator intends those who are
named as beneficiaries under the will to take their benefits personally, so that if
they predecease the testator their benefits pass back to the testator’s estate
and are said to lapse’.
And it is applicable in India.
In 04 jurisdictions of Australia the survivorship requirement that
forms the basis of the doctrine of lapse has been extended by statute. As a
result, it is no longer sufficient that a beneficiary simply survive the testator; the beneficiary must survive the testator for a period of 30 days, failing which the
disposition takes effect as if the beneficiary died before the testator.
In UNITED KINGDOM Queensland Law Reform Commission by its'Report given in 2006
considered this counter doctrine of 'Anti lapse'but I am not aware any legislation came into force or not.
In India Rule of LAPSE is there but not the rule of ANTI LAPSE then in absence of any statute or amendment,we can not get established THE ANTI-LAPSE RULE by our model arguments,though that may serve the demand of a legislation or amendment in Indian Succession act dealing rule of lapse.
In fact India does not have rule of ANTI-LAPSE,in my knowledge.
I put my self subject to correction if any of us shows a statute book in this regard or any Apex court judgement where in rule of ANTI-LAPSE,has been recognized.
T. Kalaiselvan, Advocate
(Expert) 15 March 2014
I agree with the experts that the beneficiary, if stated to have predeceased he testator and the Will has not been altered/amended with alternative clauses, the Will shall be deemed to have lapsed and is invalid. therefore under the said circumstances, the entire property will devolve equally upon all the legal heirs and the author and his sister and mother shall be inheriting their father's share jointly to be divided equally among them.
