No chance of probate to my shared property
siri
(Querist) 21 October 2011
This query is : Resolved
Testator has 3 sons..In year 1983,testator registered the WILL & mentioned that her 4.2 acres to be distributed as follows.
2.1 acres on north side to the children of 2nd son i.e X,Y and remaining 2.1 acres on south side to the children of 3rd son i.e Z & testator clearly mentioned X,y,Z names also and testator kept condition that her 2 son's as guardians for their respective property until their death and after death of her 2nd son automatically X,y will get share of north side & after death of 3rd son automatically Z will get share of south.Again in 1987,she gave registered GPA to her 3rd son mentioning that I already registered the WILL in sub register office for my 4.2 acre, in that now 1 acre from north side is giving GPA to my 3rd son.With that GPA ,testator 3rd son sold property to testator 1st son daughter in year 1987 and testator died on 1989.In 1995 testator 1st son daugter sold her entire property of 1 acre to some one..In year 2006 & year 2010 testator 2nd son & 3rd son who are guardians also died..PLZ clarify
1)Can individually 2nd son children X,Y with out invoving Z(since X,Y did nothave good relation with him and Z is not cooperating with us for probate of WIL) can approach the court for probate of WILL for their remaining shared property of 1.1 acre but they have only certified copy of registered WILL of 1983, death certificate of their father in year 2006 & EC reflecting NILL for their shared property of 1.1 acre in north side.Is this proof sufficient for probate of WILL
2)Can we directly ask for probate of WILL for us shared property of 1.1 acre by giving settlement condition as .55 acre & .55 acre distribution b/w us(X & Y) during probat of WILL
3)Clearly names of X,Y & their share also had mentioned and 2nd son of testator name also mentioned ,now testator 2nd son had died,& X,Y have death certificate of testator 2nd son.
How to solve my problem as Z is creating problem and if court notice given to Z for any objection ,he may oppose.So tell me with out invoving Z,how to probate the WILL
Raj Kumar Makkad
(Expert) 21 October 2011
1. Yes, they can very well for seeking their own right in the will by way of probate but they shall have to implead all other interested parties.
2. No. You are not entitled to settle your partition proceeding with probate petition.
3. Z is a necessary party so he cannot be ignored and shall have to be made a necessary party.
Raj Kumar Makkad
(Expert) 21 October 2011
1. Yes, they can very well for seeking their own right in the will by way of probate but they shall have to implead all other interested parties.
2. No. You are not entitled to settle your partition proceeding with probate petition.
3. Z is a necessary party so he cannot be ignored and shall have to be made a necessary party.
prabhakar singh
(Expert) 21 October 2011
i also hold the same view as expressed by makkad
prabhakar singh
(Expert) 21 October 2011
i also hold the same view as expressed by makkad
sanjeev murthy desai
(Expert) 21 October 2011
1)Can individually 2nd son children X,Y with out invoving Z(since X,Y did nothave good relation with him and Z is not cooperating with us for probate of WIL) can approach the court for probate of WILL for their remaining shared property of 1.1 acre but they have only certified copy of registered WILL of 1983, death certificate of their father in year 2006 & EC reflecting NILL for their shared property of 1.1 acre in north side.Is this proof sufficient for probate of WILL
Ans: Succession Act provides that "Probate shall be granted only to an executor appointed by the Will. Hence, in your case probate of such will is not possible under law. But it is advisable to file a petition for "letter of administration" in the jurisdictional court. In my view said documents are sufficient proof
2)Can we directly ask for probate of WILL for us shared property of 1.1 acre by giving settlement condition as .55 acre & .55 acre distribution b/w us(X & Y) during probat of WILL;
3)Clearly names of X,Y & their share also had mentioned and 2nd son of testator name also mentioned ,now testator 2nd son had died,& X,Y have death certificate of testator 2nd son.
How to solve my problem as Z is creating problem and if court notice given to Z for any objection ,he may oppose.So tell me with out invoving Z,how to probate the WILL
Ans to 2 and 3:
After the testator death will is automatically operated as a testator wish. As above said file a petition for letter of administration in the court which has the authority to resolve your problem.
