Law of will
muthusamy
(Querist) 17 January 2009
This query is : Resolved
Sir,
My father in his will which was written in the year 1956 has stated that the properties that he would purchase after writing this "will" will belong to his five sons of his second wife.
He purchased a property in the year 1960 and expired in the year 1961.
I am the third son among those five sons.
My elder brothers approached the court for partition.
I paid the court fee for my 1/5 portion and had prayed for partition.
The lower court rejected the suit by raising a speculation that how could the will state about the schedule property which was purchased in the year 1960. Another reason stated for the rejection of suit is the non inclusion of the son of the father's first wife who is alive.
Is there any law preventing one from writing a clause in the will by which his belongings that he will acquire in future will be bequethed to a person he wants.
The case is now in the high court. Is there any judgement substantiating my claim that in a will the testator can bequeath his properties which he buys during his life time after writing a will to any person whom he wants?.
Is there a necessity to join the son of the first wife in the suit while the will says that the schedule properties will belong the sons of his second wife.
Thanking you in anticipation.
muthusamy
(Querist) 17 January 2009
All the properties are my father's self earned properties and it is not ancestral prperties.
sanjeev murthy desai
(Expert) 18 January 2009
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
muthusamy
(Querist) 18 January 2009
Sir,
I have searched and pasted some definitions of terms below.
An executor is the person appointed ordinarily by the testator's by his will or codicil
Executor is the legal representative for all purposes of a deceased person (testator) and all the property of a testator vests in him.
A Will can be written in any language and no technical words need to be used in a Will, however the words used should be clear and unambiguous so that the intention of the testator is reflected in his Will.
Disposition of Property : The declaration should relate to disposition of the property of the person making the Will.
Death of the Testator : The declaration as regards the disposal of the property must be intended to take effect after his death.
With these definitions, at the time of the testator, there is a property which the testator has wished to bequeath to some one who wishes.
The intention of the testator is reflected in his Will.
Kindly review your reply and if you still have the same opinion please let me know it. Thanking you.
muthusamy
(Querist) 18 January 2009
Respected sir, kindly read the following clause "What are the standard clauses that one should put in a Will?"
It is always better to include a residuary clause in the will to ensure that the laws of interstate succession do not interfere
with the assets not specifically mentioned in the will. Therefore a statement to the effect that ‘I, Mrs. Z,
hereby give and bequeath all the rest and residue of my estate which I may die possessed of and entitled to, to my
children B and T absolutely and in equal shares.”
The above clause is in the following website.
http://www.qualisadvisers.com/Articles/Wills.pdf
As I am a layman in law, kindly read the clause in the website and guide me.
Thanking you.
muthusamy
(Querist) 18 January 2009
Please note that The question is open
sanjeev murthy desai
(Expert) 19 January 2009
Dear Muthusamy,
The Legal Maxim Nemo dat quod non habit: One cannot grant what one does not have.
The writing a will by testator the on the time property did not existance and once again you have check in your home wheather your father was wrte the codicil or other documents. If the unavialable of the said documents the title of the properties should be succeed through sucession his all legal heirs.
Iam still searching case laws if i get i will forward you.
sanjeev desai
sanjeev desai
muthusamy
(Querist) 19 January 2009
http://www.qualisadvisers.com/Articles/Wills.pdf
Adv.Shine Thomas
(Expert) 20 January 2009
According to sec 2(h)of the Indian succession Act 1925,a Will is the legal declaration of the intition of the testator with respect to'his property',which he desires to take effect after his death.The'property'bequeathed should be in existence at the time of death of the testator,even if it was not in existence at the time of exicution of the Will.
muthusamy
(Querist) 20 January 2009
Respected Shine Thomas,
The sentence, The property bequeathed should be in existence at the time of death of the testator,even if it was not in existence at the time of exicution of the Will." clears my doubt leaving no ambiguous meaning.
When the suit comes for hearing in the high court can my lawyer quote this section 2(h) of the indian succession act 1925
