Validity of the will

K.P.Nataraj (Querist) 01 March 2020 This query is : Resolved
1. Joint Will executed on 16-06-2014 by Husband and Wife. Will not registered. Certified by Notary.

2. Wife died on 17-10-2014.

3. There are two properties. One is a Joint property ( in the name of both husband and wife), and another one is in the name of her
husband.

4. According to the Joint Will, after the death of any one of the testators, the survivor has to safeguard, enjoy and maintain the
properties till his/her death and then the properties will be transferred to the beneficiary who is their grandson after the survivor's death.

5. The relationship betweeen the parents and son was not good. They used to fightover all the time. Parents were forced to sign the Will. They have three children. One Son and two Daughters. The Son and grandson were residing with their parents. The two Daughters got married and are living seperately with their husbands. During the last few months of her death, she regularly made it cleat that she wanted to distribute the properties equally among all children.

6. The Survivor i.e the Husband before his death, on 20-11-2014, executed a Gift Settlement Deed infavour of his son and grandson in contrary to the Will.

7. The Survivor i.e. the Husband died on 22-08-2017.

Please clarify whether the Will is Valid or Invalid.

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Quick Summary

This discussion examines the validity of a joint will made by a husband and wife, which stipulated that their grandson would inherit their properties after both their deaths. However, the husband later executed a gift settlement deed favouring his son and grandson, transferring his own property and his share of the joint property. The advice suggests the husband's gift deed supersedes his portion of the joint will, as a testator can change their will during their lifetime. The wife's share of the joint property, however, would still pass according to her will to the grandson, though this could be subject to challenge by other legal heirs.

Raj Kumar Makkad (Expert) 01 March 2020
Will of father stood superceeded on 20.11.2014 when executed a Gift Settlement Deed in favour of his son and grand-son but that gift shall be limited only to his property and the share in the joint property of his wife.

The share in the joint property of mother shall go in favour her grand-son as per her will.

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kavksatyanarayana (Expert) 01 March 2020

I opine, the grandfather already executed a Gift deed in favour of his son and grandson for his property. In the joint property, the share of the grandmother goes to her grandson and remaining share of husband goes to all the legal heirs of her husband equally.

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K.P.Nataraj (Querist) 02 March 2020
Respected Sirs Raj Kumar Makkad and Kavksatyanarayana,

Thank you very mucjh for your replies.

But I have few further queires regarding the validity of will.

1. The Notary who certified the Joint Will is a very close relative of the Son.

2. Consider also point No. 5 in the first query.

3. My questiion is how the Grand father had settled the properties through Gift Settlement deed of not only his property but also the Joint property. That too to both the Son and Grandson. But in the Joint Will it is clearly mentioned the properties will be transferred to Grandson.
Son is not mentioined as a Beneficiary in the Joint Will.

Please clarify Sirs.

Raj Kumar Makkad (Expert) 02 March 2020
A will can be got changed by its testator as many times as he wishes. A will comes into consideration only after demise of testator. As in the present case, father, since deceased, though had got prepared a joint will with his wife but during his life time, he transferred his exclusive as well as joint share favouring his son and grandson so his will was not in existence after his death whereas his wife had not changed her will during her life time so her share shall be bequeathed in favour of her son and grandson as per her will, however, every will is subject to the litigation. All other legal heirs of their mother can definitely challenge the will of their mother. BUT the settlement-deed of their deceased father has already taken finality and doesn't remain for challenge at this stage may the relationship of their son was not good and the notary public was also a friend to their son.

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K.P.Nataraj (Querist) 02 March 2020
Thank you very much Rajkumar Makkad Sir.

Raj Kumar Makkad (Expert) 02 March 2020
You are always welcome Mr. Natraj.

T. Kalaiselvan, Advocate (Expert) 20 March 2020
Though the Will was made jointly by both husband and wife, it can be considered as both have bequeathed the properties to which they had clear and marketable title.
As rightly opined by expert Advocate Mr. Makkad Sir, that a testator can change or cancel his Will anytime or any number of times during his lifetime, by transferring his own property to his son and grandson by executing a registered gift deed during his lifetime, he has been devastated with all the properties in his name, i.e., he is no more having any property to enforce the Will after his lifetime, hence as far as the Will in respect of his property stands infructuous.
Therefore there can be no dispute maintainable in this regard.
However the property lying in the name of the joint testator, upon her death can be acquired by the beneficiaries named in the Will.

T. Kalaiselvan, Advocate (Expert) 20 March 2020
To your subsequent question, the joint insofar as the bequest made by the husband stands infructuous as he had no property on his name as on the date of effective date of Will or the Will coming into force since the properties bequeathed were already alienated by the testator during his lifetime hence the Will stands automatically cancelled and any claim in that regard may not be maintainable.

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