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TERMS AND CONDITIONS SPECIFIED IN THE WILL

(Querist) 26 June 2009 This query is : Resolved 
IF A PROPERTY IS TRANFERRED VIA A WILL BUT SUBJECT TO CERTAIN CONDITIONS SPECIFIED IN THE WILL, WHETHER THE WILL IS GOOD.
A V Vishal (Expert) 26 June 2009
Dear Maya,

Yes, The property can be conditionally willed, legally there is no bar on it.

Conditional Wills: A Will maybe made to take effect on happening of a condition. In Rajeshwar v. Sukhdeo the operation of the Will was postponed till after the death of the testator’s wife. However if it is ambiguous whether the testator intended to make a Will conditional, the language of the documents as well as the circumstances are to be taken into consideration.
Maya Arora (Querist) 26 June 2009
MR. VISHAL THANKS FOR REPLY, I AM GIVING YOU THE CONTENT OF THE WILL, SEE WHETHER IT HOLD GOOD.

WILL

THIS LAST WILL AND TESTAMENT is made at Delhi on this the --- day of June, 200- by Smt. ------ wife of Late Sh. ---------- resident of ------------
I, HEREBY, revoke all my previous Wills, testaments, any other instruments or declarations of testamentary nature and do hereby absolutely declare this to be my last and final Will. No other will, claim, right or title other than created by this present will shall be relied upon or acted upon in any manner whatsoever.

Life is short and only God knows when it may come to an end and in the circumstances I, with my free will and consent, without any force, coercion or compulsion from anyone, am executing this Last Will and Testament in good health and sound disposing mind.

I was blessed with two daughters and two sons namely, (1),
(2) ,(3) ,(4).

I am the absolute owner and in possession of one property bearing plot no. 31 & 32, measuring area 225 sq. yds. Out of Khasra No. 204, situated at------ Delhi. The property is having constructed area of approx. 125 sq. yard, having two storied building bearing address ---------Delhi. The Ground Floor is having four bed rooms, one drawing cum dining room, one kitchen, two bathrooms. Whereas the first floor is having five rooms with one gallery, three bathrooms, two kitchens. The front area of the property is left for greenery. The property is bounded as under :-
East……: Gali 15ft. wide.
West…: Govt. School.
North…. : Mandir.
South….: Houses of others.

NOW BY THIS WILL I do hereby bequeath that after my death,all my abovementioned property in favour of my sons and daughters in the following manner and subject to following conditions:

1. Ground Floor of the above said property to my elder son ------
2. First Floor of the above said property to my younger son-------.
3. There is a provision for making Second and Third Floor. My Both daughters have right to make and take possession of the said floors. The second floor to my elder daughter -----Ms.---- and Third Floor to my younger daughter Ms.----.
The conditions are :
1. That all the above four testimonies will take care of the temple along with the other devotees of the temple. They will keep one full time pujari on salary basis for the ritual activities. The maintenance of the temple and all functions and festivals will be carried on by all.
2. That each testimony will give one thousand rupee per month to the temple for the maintenance of the temple. This amount is subject to revival depending on the expenditure of the temple. If the expense increase all above have to bear in equal ratio.
3. That If any testimony deny from this responsibility, then he/she has to pay the double amount i.e. Rs. 2000/-p.m. or double of new increased amount.
4. That the front area of the property will remain vacant for greenery purpose. No one has claim over the common area. All expenses to maintain the common area will be born equally by persons residing over there.
5. That the backside of the temple, there are two rooms with one kitchen and one bathroom. This property will be utilize exclusively for the benefit of temple. This property can further be constructed only for the holy purpose. The rental income will be used for the temple. No one has a right over it.
6. That if in future all the above testimonies decide to reconstruct the building, then the construction will be done only to the extent of that area, which is in existence and the share in portion of the property will remain same. No one can construct beyond this area. But all the above testimonies have right for internal changes in their allotted portion of the property.
7. That the testimonies have exclusive right to enjoy their share in properties. They can reside over there. They can let out a portion of their share in property. But if the testimony do not reside in their allotted share and rathe
sanjeev murthy desai (Expert) 26 June 2009
Dear Maya Arora,

Yes this will is clearly valid and there is no consequence in this will.
Maya Arora (Querist) 26 June 2009
can any testimony refuse to accept the conditions, if so what remedies are there.
Maya Arora (Querist) 26 June 2009
one more question, can two or more testimonies change the conditions for their personal benefit.
adv. rajeev ( rajoo ) (Expert) 26 June 2009
will will be valid. It is conditional will
A V Vishal (Expert) 26 June 2009
Dear Maya

*** There is a provision for making Second and Third Floor. My Both daughters have right to make and take possession of the said floors. The second floor to my elder daughter -----Ms.---- and Third Floor to my younger daughter Ms.----.

My Query: Who is going to Build the 2 & 3 Floors. Will it be built by the testator or in event of his death who is responsible for construction and bear the expenses towards the construction and how will they be compensated.

*** That If any testimony deny from this responsibility, then he/she has to pay the double amount i.e. Rs. 2000/-p.m. or double of new increased amount.

My Query: How does the testator intends the other legatees to collect the dues from the defaulter.

**** If any one raises any objection against this will deed, then the same objection shall be considered as null and void before the law court

In my opinion this clause is itself Null and void, it is not acceptable in law.

Also, what happens to maintenance of the temple properties if all the children decide and sell their respective shares in the property. No doubt the sale proceeds as mentioned in the will shall have to be deposited in the bank in the name of the temple, who is going to oversee whether the children deposit it or not.

Moreover since it involves trust a executor has to be appointed.
Swami Sadashiva Brahmendra Sar (Expert) 26 June 2009
It is a will cum settlemend deed. However, when a will is executed in favour of legal heirs, one of it's primary object is to avoid future disputes but,this document is full of dispute creating clauses.
If executant is alive, pls re-draft the will.
Maya Arora (Querist) 26 June 2009
Mr. vishal thanks again as far as ur 1st query concerned, testator won't construct the foor, it is an open opportunity given to the daughters for construction after the death of testator and ofcourse the cost will be born by the daughters themselves.
So I think this clause should be clarified more as u asked.

As far as ur 2nd query is concern, ur point is valid, but how to resove it. Whether some sort of arbitrator or manager should be appointed to collect the fund.

As far as ur 3rd point is concerned, it is a general legal language, i have seen in some cases. But according to u, as I think, it should be deleted.

As far as ur last point is concern, whether it is compulsory to appoint an executor. Whether any one testimoney can be appointed to look after the matter.
sanjeev murthy desai (Expert) 26 June 2009
Dear Maya Arora,

Please completely gothrough the clause 9 of said will which clearly stated that any dispute and difference arise among them, then the majority decision of the testimonies will prevail. I think this clause will be answered that subsequnt your questions.
A V Vishal (Expert) 26 June 2009
Dear Sanjeev

Even going by Cl.9 what is the situation in case of a tie.
A V Vishal (Expert) 26 June 2009
Dear Maya.

Suggest u to get the will drafted by a good lawyer in Delhi, since the will represents the desire of the maker, it should be unambigious. Further no legal language is required to draft/write a will, simple language which express the heart and thoughts of the testator is sufficient.
sanjeev murthy desai (Expert) 27 June 2009
In my veiw that conditions are not immoral and impossible conditions. That conditions should be performed.

section 132 of Indian Succession act provides that Condition must be full filled. As per this section the testimonyes should be full filled their conditions mentioed in that will. If the conditions are fullfilled disputes donot arise.


Maya Arora (Querist) 27 June 2009
Mr. Desai, thanks for quoting the relevant section, but as doubts raised by Mr. Vishal, those doubts are relevant. According to u as per relevant section, the conditions should be fulfilled. I know the WILL is complete, whatever the testor want, everything is there. I donot not agree with Mr. Tripathi.But as far as the points raised by Mr. Vishal, I want to know whether the legal langauage is complete or there is lakuna somewhere in that.
A V Vishal (Expert) 27 June 2009
Dear Friends,

The Indian Succession Act is not applicable as the testator is a Hindu, please refer S 4:

4. Application of Part.-This Part shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina.
PALNITKAR V.V. (Expert) 27 June 2009
I have gone through the replies given by my friends. As suggested by Mr. Vishal, it it better to approach a good lawyer and get th e will redrafted so that no ambiguity remains.
sanjeev murthy desai (Expert) 29 June 2009
Section 4 of Indian Succession clearly applies only for the purpose of Domicile not for the testator will.

sanjeev murthy desai (Expert) 29 June 2009
Section 57 of Indian succession clearly provides that application of certain provisions of Part (Part VI) to a class of wills made by Hindus, etc.-The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-- (a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; 3*[and --------------------------------------------------------------------- 1 Subs. by Act 51 of 1991, s. 5.

2 S. 57 was re-numbered as sub-section (1) of that section and sub-

section (2) added by Act 37 of 1926, s. 2; subsequently

sub-section (2) was omitted and sub-section (1) was re-numbered as s. 57 by Act 18 of 1929, s. 3. 3 The word "and" and cl. (c) added by Act 18 of 1929, s. 3. --------------------------------------------------------------------- 70 (c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):] Provided that marriage shall not revoke any such will or codicil.

sanjeev murthy desai (Expert) 29 June 2009
That conditions are tastator's valid rights and those are bequeathable and also those are represents testators true intentions. Even further disputes will arises between the testimoneys, they can resolve that in jurisdictional court of Law. Where is a problem there is a remady under Law.
Maya Arora (Querist) 30 June 2009
Thanks Mr. Desai, now I think my query is resolved. I thanks to all participants for such good discussion.


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