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Fight for justice (manager)     17 January 2015

Challenging father's will

My Father expired in Oct 1997. After his death, my brother and mother stopped speaking with me. Now, After nealry 17 years, my brother has shown my father's will to me and my younger sister (we are one brother and two sisters, including me and I am eldest). As per father will, he left his self acquired property to my mother and some part to my brother. Subsequently my mother expired and has left all her share of property in brother name. Both the wills are handwritten and signed by two witnesses. But neither is registered.

How can I authenticate that these wills are true and final versions, esp my father's will?

If will is not registered, is it legally enforceable?

Am i required to sign off and validate the will?

What rights do I have to challenge the will or ensure that i am not deprived of my fair share.



Learning

 10 Replies

adv. rajeev ( rajoo ) (practicing advocate)     17 January 2015

You can't do anything.  If there is difference in signature you can challenge it , otherwise no use

Jayashree Hariharan (Advocate)     17 January 2015

Just because it is handwritten it cannot be deemed to be false. You can only question the signature, if you feel it is forged. 

 

REgistration of will is not compulsory under law.

Suneet Gupta (www.vashiadvocates.com)     18 January 2015

The will needs to be probated to be enforced. If your father's will was not probated before your mother's death, then his property does not automatically flow to her without the probate.

Your brother will have to get both your father's and your mother's wills probated in the High Court to enforce them. You can challenge the wills at the time of probate on grounds of forgery of signature and also on grounds of limitation (if the wills were not probated within 3 years of the death of the respective executants).

Fight for justice (manager)     19 January 2015

My brother is compelling me to issue a No objection certificate for the will to be executed so he can get father's property transferred in his name (property is in delhi and MCD needs either probated will or NOC from all legal heirs). However, he has not given me full settlement of my dues from both my mothers and fathers wills. Further, my belief is that my father's will was made under my brother's coercion and under duress.

-How can I ensure I get full and fair settlement of what is due to me ( i havr received some partial settlement against my mother's will, notthing against father will) ?

-Can I object saying I have not received what was due to me? 

-Can I state that will was made under duress?

-Since I have accepted some part payment as per mother's will (since I needed funds for an emergency), will it go against me and can it be used as a confirmation that I am fine with the wills - both father and mother? 

- What happens if I do not give my NOC?

Suneet Gupta (www.vashiadvocates.com)     19 January 2015

Please tell your brother to go in for probate of the wills. You can challenge the wills during probate. Your acceptance of the part-payment does not make a difference.

However, if your father and mother have willed their self-acquired property to your brother, and if the wills are genuine, then you have no rights on the property and there will be no amount due to you.

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saravanan s (legal advisor)     19 January 2015

will need not be registered but which ever will is written last by your father is considered to be legal.since it is his self aquired property he can give it to anyone and noone can object it.as other experts suggested you apply for probate of will to ascertain the genuineness of the will

Fight for justice (manager)     21 January 2015

Thanks for the guidance. Mybrother has said he will go for probate of will. In this respect he is saying that he will utilise the funds from my fathers estate to pay for expenses, even though he himself (my brother) is very well off with several properties/assets in his name. He has also been enjoying other benefits accrued on mother and father's assets such as bank interest, rent on leased properrtty etc.

Can he claim the probation expenses against the father's estate, part of which belongs to me?

The witnesses to mother's will have expired. I do not know about the witness to father's will. How will the witnesses and their signatures be validated?

Suneet Gupta (www.vashiadvocates.com)     21 January 2015

Probate expenses are to be borne out of the estate of the deceased. So your brother is correct in using your father's funds for the probate. However, he cannot use those funds till the Letters of Administration are granted by the High Court.

Till then he has to use his own funds and seek reimbursement later. Additionally he will have to provide account for all funds he has accrued from your father's estate till the LOA or Probate is granted.

Please note that you are not automatically entitled to any funds from your father's or mother's estate, especially if the properties were self-acquired and not ancestral, and have been willed to your brother. Therefore, you might not get any share in the estate of your father or mother after probate.

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Fight for justice (manager)     21 January 2015

Thanks Suneet. Just to clarify, as per the wills, my parents have willed some of their money (cash) in my name of which my brother has paid only a part to me now (after more than 15 years) and is claiming he has no funds to pay me the rest of the money due to me (including the interest that would have accrued on these funds for last 15 - 17 years which he has used). On the other hand, in the interim period he has constructed at least one large 3 storey bungalow (worth a few crores) and maybe there are other investments I dont know of and I am afraid he has used up the money my parents left for me to build these properties. In fact, he never showed the wills for so many years and only now he is opening up  and informing because he has to get parents property (again worth crores) transferred in his name and he needs NOC from legal heirs. I am not asking for what is not mine - i just want to ensure that I get my fair dues (which is small compared to what he has got/will get).

Again, regarding re-imbursement of expenses, even if this is being paid from the deceased's estate, should it not be shared from everybody's portion i,e all beneficiary portion?

Suneet Gupta (www.vashiadvocates.com)     21 January 2015

Please note the mode and order of disposal of a deceased's estate:

  1. Costs of Probate are paid first
  2. Any pending loans, etc. are paid next
  3. Specific bequests as per the Will are paid third - i.e. any gold jewellery, painting, books, etc. willed specifically to any person
  4. Money bequests as per the Will are paid after the specific bequests - i.e. any specific money amounts willed to a specific person (e.g. the amount willed to your sister and you by your father)
  5. Any pending estate goes to the residual legatee - i.e. if your father has said that he wills all property to your brother, then your brother will get the property only after the amounts willed to you have been fully paid and satisfied

Therefore, please note that the costs of the probate will not come out of your legacy amount. Additionally he will have to get your mother's will also probated after your father's will. If your brother has used that money or did not reveal the will after your father's death, then he will also have to pay interest on the amount due to you.

You can also contest the probate on grounds of Limitation and ask for equal share from your father's estate, saying that the probate of the will has been delayed because of your brother's bad intentions. Therefore, the will cannot be probated now. and you are entitled to an equal share in your father's estate.

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