Family arrangement under a will
Dhruv
(Querist) 02 May 2012
This query is : Resolved
Dear All,
'F' is a father. He has a daughter 'D' from his first wife 'W1'. He remarried to second wife 'W2'. He has two sons from his second marriage 'S1' and S2'. S2 predeceased F. F left a Will which is not yet probated. In the Will he states that he owns one house property 'H1' solely and the other house property 'H2' jointly with his wife. The will states that his share in both the house property should be equally distributed between 'D' and 'S1'.
After his death his second wife'W2' claims that she is the sole owner of 'H2', as the share certificate only states her name as the owner. Her name was only for convinience purpose as is claimed by the daughter 'D' from first wife.
Now all the parties have mutually agreed that 'D' will forego her share in 'H2' in lieu of increased share in 'H1', while the 'S1' will reduce his share in 'H1 and forego his share in 'H2' and that 'W2' will be the sole owner of 'H2'.
Can a family arrangement be drawn on the above basis as the shares in 'H1' were never in dispute. Now the shares in H1 are being changed. Will it be a valid family arrangement? Or is the Will to be followed in case of H1 and family arrangement be drawn only for H2?
ajay sethi
(Expert) 02 May 2012
if a will has been left by father it is advisable that probate be obtained of the will . as per the will 50%share is given to duaghter and son in house no 1 and house no 2 .
obtain probate .
you have stated that he had a second wife . you have not mentioned whether second marriage took place within subsistence of first marriage .
if father married while the first wife was alive then marriage would be illegal
if all parties are agreebale for family settlement then it is upto parties to decide whether they want to do so or not . get it stamped and regsitered .
Adv.R.P.Chugh
(Expert) 02 May 2012
Dear Dhruv,
1. In either case whether the second marriage is valid or not. The Will takes effect. Obtain a probate of the will, to give effect to intention of deceased father.
Both children get half each in first property and half of the half owned by father in property 2.
2. If you decide to give effect to your own settment in place of will, you'd have to supress the same (which is not strictly legitimate) and everyone gets their respective shares by inheritance. Second Wife if wife of a valid marriage also takes a share to the tune of 1/3rd each equally with the children.
As per convinience necessary relinquishment deeds duly registered may be effected.
Dhruv
(Querist) 02 May 2012
Thankyou Sirs for your replies.
At the outset, the marriage is a legal.
I agree that the intentions of the deceased has to be given effect. However in this case the daughter D and the son S2 are not interested in residing in these house properties as they are settled elsewhere. The wife W2 has a life interest in H2 as per the Will and the children desire to sell H1. The son S1 is not willing to sell H1 until daughter 'D' agrees to the whole ownership of H2 is with his mother W2.
Also a criminal court case regarding the ownership of property H2 is going with the society wherein wife W2 has stated that she is the whole and sole owner of H2. So family arrangement stating otherwise will create more problems.
In the proposed arrangement, the son S1 reduces his share in H1 as the daughter D increases her share in lieu of her share in H2, while the son S1 totally foregoes his share in H2. Thus he gains nothing while relinquishes his shares in both H1 and H2. Is this valid?
ajay sethi
(Expert) 02 May 2012
you have stated additional facts which were not mentioned in your query .
why has society filed crimninal case aginst second wife?
consult a local lawyer . we are not comfortable in ignoring the wishes of testator .
it is your call
Raj Kumar Makkad
(Expert) 03 May 2012
You shall to put the entie facts in one go so that definite reply might have been given.
Anyway, it is better to engage local lwyer and show him entire relevant documents so as to obtain best advice.
ashutosh mishra
(Expert) 03 May 2012
"You shall to put the entie facts in one go"
MAY I SEEK ITS' MEANING SIR!
Shonee Kapoor
(Expert) 04 May 2012
I agree with Ld. Sethi/ Ld. Makkad.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
R.K Nanda
(Expert) 06 May 2012
I agree with experts.
