Ravi k Pandith 20 February 2021

Father's will

Dear All,

I sincerely request your advice regarding execution of Will of my father.

My father during his lifetime made 2 properties :

1) Schedule A : Present individual house with 5 houses

2) Schedule B : Six flats in an Apartment.

My father made his WILL just before 20 days of his death on the suggestion of my uncle (Father's own brother, who is educated and knowledgeable regarding property matters whom we deeply respect). My father was suffering from Stage 4 Cancer at the time of this WILL.

In the Will he has equally divided 3 flats each to both of us (me & brother, no sisters) with the right to sell the property being given only to me. My brother has been given the same right after his children attain majority age.

Now our problem starts here :

Schedule A property is properly divided.

We both the brothers are willing to sell (Schedule B) all the flats for good investment with good monthly income for future life as we have 4 children in house (Joint Family), but the condition in will is stopping us to do so.

Though the Will was made and signed in front of us only, we were ignorant of legal complexities as our primary concentration was towards saving father from Stage 4 Cancer. But we strongly feel that selling 6 flats is the need of this hour as we will get Handsome Amount based on which we have systematically planned for a good monthly income.

Now can anybody kindly guide us legal procedures to obtain the selling rights even to my brother as well.

We would like to go ahead with any other legally permissible procedures without affecting the HONOUR & DIGNITY of our father.

We deeply respect our father (Ex Serviceman) and what we are today is JUST BECAUSE OF HIM.

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7 Replies

G.L.N. Prasad (Retired employee.) 20 February 2021

Contact a local advocate and obtain permission from a competent court seeking their directions for such conditions to take care of the interest of the minors etc.

SHIRISH PAWAR, 7738990900 (Advocate) 20 February 2021

Hello,

As per my opinion, your brother cannot sell the flats till his children attain the majority as per conditions prescribed under the will of your father.

SIVARAMAPRASAD KAPPAGANTU (Retired Manager) 20 February 2021

Will is a sacred document as it states the last Wish of the Deceased. Therefore, you need to respect it and follow the provisions in toto. When your Father had mentioned in his Will that your Brother should not sell the property till his Children attain majority, he must be having a reason for the same. Therefore, your Brother needs to wait till his Children attain a Majority. Even if your Brother tries to sell, he needs to show the document through which he obtained ownership and the Buyer surely shall read the provisions and shall not proceed with the sale.

There is no Legal remedy to modify an existing Will when the person who wrote it is no more.

Ravi k Pandith 21 February 2021

Namaskar,

Many Thanks for the valuable suggestions from the Respected Advocates of the Forum.

Now my final question is ;

1. Since this Will has been framed by my father keeping in mind the interest of the grandchildren from my brother, and since he was worried about the capabilities of my brother, now, if we are able to convince the court regarding their minor age and hence unable to take decisions on their own (grand children), can the court pass an order giving selling rights to my brother...??

2. To meet the above purpose (Point 1), I intend to transfer my ownership title of Schedule A (which is 2 portions in the present individual house (ONE 1 BHK & ONE 2 BHK House, site area 1200 sq.ft) to my brother so that he will have additional support to prove that Father's intentions towards grand children will be maintained by these 2 additional properties in his name, then, is there any possibility of court hearing to our request ?

I am even ready to transfer 1 more self earned property plot measuring 1200 Sq.ft to his name.

Kindly can anybody suggest regarding these points....

SIVARAMAPRASAD KAPPAGANTU (Retired Manager) 21 February 2021

Dear Sir,

Your good intentions notwithstanding law is law and Will is the final document of the deceased giving directions as to how his estate is to be dealt with.

Re. Your point 1, if you move Court, they surely pose a basic question as to cause of action ie what exactly is the dispute.According to me, there is none. Will says "so and so" and Court may declare and reiterate that it needs to be complied with. Point is, your dear father didn't restrict you from selling but imposed a restriction on your brother alone for reasons best known to him. That cannot be contested at this stage and it will be very difficult to convince the court even if the case is admitted at all and it's not known how long the case runs.

If at all case is admitted somehow, you should be able to convince the Court as to the mitigating circumstances and compelling reasons under which the property needs to be sold right away without waiting for your brother's children to attain majority. It will be very difficult to convince Court, and in the meanwhile the minor children may attain majority solving the problem on its own without intervention of Court, as we do not know how long it takes for a Judgement to emerge.

Re. Your Point 2. Please note that it's not prudent to follow this line of action as it may complicate the issue right now or in future and your Children may question right now if they are already major or if minor when they attain majority.

When you are ready to transfer enitire property inherited from your father as your share, you can as well help your Brother and/or his children financially without transferring the properties to your brother.

There may be some unethical grounds based on which Will can be contested. I shall refrain even to discuss such methods as you all respect your father very much. Hope you understand.

P. Venu (Advocate) 21 February 2021

"My brother has been given the same right after his children attain majority age." Why this condition only for your brother, not for you - any special reasons?