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Tanveer ul Qamar   22 June 2024

Beneficiary of a will died before applying / or getting probate of a will

"A" is the person who executed/wrote a WILL, duly registered in the Sub-Registry Office, After some time A died and will come into force.  Now according to the Will, he only gave all his property and belongings to his mother. He did not give anything to his wife and his minor daughter. Now as his mother was preparing to file a case for probate, she also died, and a probate case could not be filed. now what is the fate of this will.


 5 Replies

kavksatyanarayana (subregistrar/supdt.(retired))     22 June 2024

The mother's children and husband have equal rights over her property. If any child dies his/her share will devolve among his/her legal heirs.

Advocate Bhartesh goyal (advocate)     22 June 2024

After demise of "A" as per his will his mother became absolute owner of properties and belongings and after that his mother died intestate so her property rights devolve equally to her legal heirs .Mother's deceased son's share will go to his wife and children.

T. Kalaiselvan, Advocate (Advocate)     23 June 2024

Properly explained and opined by experts above,  I simply endorse their opinions. 

P. Venu (Advocate)     28 June 2024

Prima facie, Muslim Laws of succession applies. Accordingly, the testator cannot execute a Will (Wassiyat) compleltely depriving the legal heirs of inheritance. bequest needs to be limited to one-third.

A Muslim testator can make a will of only one-third of his property without the consent of his or her heirs. If the bequest is in excess, and the heirs refuse to give their consent, the totality of the will does not become operative or invalid but abates rateably and is valid to the extent of one-third of the property, as has been stated in the Hedaya. In Damodar Kashinath Rasane v Shahzadi Bi AIR 1989 Bom 1, the Bombay High Court stated that a Muslim cannot bequeath more than one-third of his property whether in favour of an heir or a stranger.

Parth Chawla (Lawyer)     29 June 2024


I have read your query and would like to answer it. The Indian Succession Act, 1925 is the law governing matters relating to “will”. In case of joint legatees Section 106 of Indian Succession Act, 1925 provides that, the legacy does not lapse and the property of the departed beneficiary goes to the surviving beneficiary.

In case when beneficiary dies after testator and before grant of probate of the “will”, it will be considered if the testator has provided a substitutionary clause in the “will”. If the testator has added such clause then it will specify who will inherit the designated beneficiary’s share if they die before probate.

If beneficiary is not a child or lineal descendant of the testator, the “will” becomes invalid and has no legal effect. This is because a “will” is an instrument by which a testator expresses his will for distribution of his property. The “will” becomes invalid as it is no longer possible to fulfil the testator’s wishes as expressed in the will. If the “will” is silent on lapsed bequests the Property will be administered and distributed according to the laws of intestate succession. The property would then be distributed among the legal heirs of the deceased testator. The legal heirs include spouse of the deceased, children, parents, siblings and other relatives.

Hope this helps you with your query.


Parth Chawla

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