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Priya (Unemployed)     11 January 2013

The will

Greetings, 

Appreciate if I could receive information on the status of a 'WILL' under Indian Laws.

My mother (living) prepared a WILL some years ago and advised us (3 daughters) of the contents verbally.  Her WILL is registered in Thane court. At present she resides with me and is currently enjoying good health. However, we are given to understand by a relative that her WILL shall not be of any consequence upon her death as the siblings can file a case in court for share of the property irrespective of her last will. 

1) What is the legal status of a WILL? is it not suppose to be the last wish of the deceased that must be upheld.

2) If a property belonged to the parents and was legally transfered to one of the child with the writen NOC from other siblings at the time. Can this property be disputed upon the death of the parent who had already given up the property when alive?

Your valuable legal advise is highly appreciated. 

Resident of District Thane. 



Learning

 1 Replies

Kumar Doab (FIN)     12 January 2013

 

It shall be good if you can discuss in person with a competent and experienced lawyer specializing in such matters and give inputs on the contents of the will disclosed to you by your mother and her estate including house and others. The following is with limited understanding on the matter.

 

You have posted that:

.” was legally transfered to one of the child with the writen NOC from other siblings at the time.

It shall be good if it was transferred by duly registered deed of relinquishment witnessed in the presence of the sub-registrar.

 

If the will is registered and witnesses have signed in the presence of Sub registrar there should not be doubts caste on genuineness of the will.

In case of a situation court once satisfied with genuineness of the will can grant probate of the will.

If the estate of your mother is thru her husband {your father} the daughters are legal heir.

 

https://www.jagoinvestor.com/2012/04/hindu-succession-law-no-written-will.html

 

Hindu Succession Law in case of a Female death

The property of a female Hindu dying without WILL shall be distributed according to the rules set out as following -

1. Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
2. Secondly, upon the heirs of the husband ;
3. Thirdly, upon the mother and father;
4. Fourthly, upon the heirs of the father; and
5. Lastly, upon the heirs of the mother .

Important Points in case of Women Property

  • If the women has acquired any property from his Father or Mother, in that case the first right will be of the heirs of her father and not husband, in case of absence of his sons or daughters
  • If the women has acquired any property from her Husband, in that case the first right will be of the heirs of her husband , in case of absence of his sons or daughters

https://www.legalserviceindia.com/articles/will_hindu.htm

Execution Of A Will
On the death of the testator, an executor of the Will (executor is the legal representative for all purposes of a deceased person and all the property of a testator vests in him. Whereas a trustee becomes a legal owner of the trust and his office and the property are blended together) or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court grants probate. A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. It is only after this that the Will comes into effect.

Revocability
S.62 of the Indian Succession Act deals with the characteristic of a Will being revocable or altered anytime during the lifetime of the testator. S. 70 of ISA provides the manner in which it can be revoked

A mere intention to revoke is not an effective revocation. The revocation of the Will should be in writing and an express revocation clause would revoke all the prior Wills and codicils. If there is no express clause to the effect then the former Will would become invalid to the extent of its inconsistency with the latest Will, this is known as an implied revocation (however it should be shown that the differences are irreconcilable). However if there is no inconsistency between the Wills then they cannot be considered as two separate Wills but the two must be read together to indicate the testamentary intention of the testator.

Revocation can also be made in writing through declaring an intention to revoke and the writing must be signed by the testator and attested by two witnesses. The deed of revocation has to be executed in the same way as the Will itself.
The Will maybe burnt or torn by the testator or by some other person in his presence and by his direction with the intention of revoking the same. The burning of the Will must be actual and not symbolic. The burning must destroy the Will atleast to the extent of his entirety. Further the Will need not be torn into pieces. It would be sufficient if it is slightly torn with the intent of revocation.

The Will can be revoked expressly by another Will or codicil, by implied revocation, by some writing, by burning or tearing or by destroying otherwise. Cancellation of a Will by drawing lines across it is not a mode of revocation. Under the Hindu Law the Will is not revoked by marriage or by subsequent birth.

 

Valuable advice of learned experts/members is sought.

 

 


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