Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Pritam Gupta (Teacher)     02 July 2014

Of wills and trusts

Briefly, a Hindu person has two self acquired properties in Mumbai A and B. He also has two sons X and Y and his wife has predeceased him. This person makes a Will that after his death such properties will go into a trust which will be controlled by X and Y as trustees and later their heirs, but there is no Executor mentioned in the Will.

Now after this person's death, X and Y do not probate the Will and jointly sell off one property B. Therefore,

Q1. Has this trust been created/executed?

Q2. Is the sale of property B jointly by X and Y valid in law i.e. is probate mandatory?

Now after many years and after both X and Y has died ,their heirs start fighting over the remaining property A, and it becomes necessary for one or more heirs to submit this Will to probate court for Letters of Administration.

Q3. Can probate via Letters of Administration be received now? 

Q4. Can the original trust be made active now if it has not been already activated, with the remaining property A?

Thanks for reading and your informed answer will be much appreciated.



Learning

 8 Replies

Suneet Gupta (www.vashiadvocates.com)     03 July 2014

Dear Sir,

I am not sure the will can be probated at this stage as there is a time limit for the same after death of the testator. However, you can apply to the court for excusing the time limit.

It will be better if you reconcile the differences internally and dispose of the other property, because in your case, the no and appointment of trustees will also be an issue.

1 Like

Advocate Ravinder (Advocate/Attorney)     03 July 2014

Q1. Has this trust been created/executed?

---Even though X and Y jointly sell one property B, the title will not pass on to the purchaser.  Any family member or the outsider can raise objection against X and Y and can file a civil suit to form a trust, as envisaged in the will.  Probate can be done later after formation of trust. Trust Act overrides personal law.

Q2. Is the sale of property B jointly by X and Y valid in law i.e. is probate mandatory?

---Sale is not valid.

Now after many years and after both X and Y has died ,their heirs start fighting over the remaining property A, and it becomes necessary for one or more heirs to submit this Will to probate court for Letters of Administration.

---Already answered

Q3. Can probate via Letters of Administration be received now? 

---already answered

Q4. Can the original trust be made active now if it has not been already activated, with the remaining property A?

--It can be made active on an application by any one of the family members or near relative.

For any other doubts contact me ravinder2345@gmail.com.

1 Like

T. Kalaiselvan, Advocate (Advocate)     03 July 2014

The issue has been properly addressed by advocate Mr. Ravinder, leaving nothing more to add.

Pritam Gupta (Teacher)     03 July 2014

Just to make sure that I am understanding correctly what Advocate Ravinder P. is saying:

1. Since property has been bequethed to a Trust so it cannot be sold before first activating the trust.-----Such can be done by a Application/Civil suit..........But for a Testamentary Trust (Trust by Will after death of Testator) isn't it executed and activated by probating the Will or a separate Application has to be made to execute the Trust regardless of probating of the Will?

2. One opinion received earlier was that since X and Y did not probate their father's Will, so intestacy will be assumed until Will is probated. Under this environment isn't the Sale of property B justified? 

T. Kalaiselvan, Advocate (Advocate)     03 July 2014

You have been rightly opined about the intestacy acquisition of the property by the legal heirs ignoring the testamentary Will.  But since the Will bequeathed the property to the trust, the legal heirs do not  have any right to share in the property as legal heirs, they may have an interest in the property as beneficiaries of the trust through Will.  here the legal heirs never bothered about the Will and have on their own disposed one property which is considered as illegal and invalid.  Hope now you understand the legal proposition(?).

1 Like

Pritam Gupta (Teacher)     03 July 2014

Thank you Sir, Advocates Ravinder P. and T. Kalaiselvan. Since this query concerns a higher level of Civil Law so I am trying to grasp the situation here. Therefore what I understand from your comments is  the following and please correct me if I have wrongly understood:

Property bequethed to Testamentary Trust is valid even without probate of the Will and has been activated after death of Testator. However the Trust needs to be executed/activated by Application /Civil suit by heirs? Then won't it be activated by probating the Will itself? Or a separate application for Trust is mandatory?

 

And the correct way to proceed under the present scenario is:

 

 

1. First execute the Trust

2. Apply for probate of Will via Letters of Administration. Can (1) and (2) be done together?

3. File civil suit to invalidate the Sale of Property B. Will there be any Limitation period for this suit? Can heirs of X and Y file this suit to invalidate their predecessor-in -interests' actions?

Suneet Gupta (www.vashiadvocates.com)     03 July 2014

As correctly pointed out by Advocates Ravinder and Kalaiselvan, the property was bequeathed to the trust and therefore the trust can claim the property at anytime, even after sale (thereby invalidating the sale).

However, the issues at this stage are two fold:

  1. Does the trust form before execution of the will or after its execution? If the trust forms after execution of the will, then it can be argued that the property before execution of the was a case of intestacy and sale by the legal heirs is valid.
  2. If the trust forms before execution of the will, i.e. automatically on the death of the testator, then it can be argued that the legal heirs, i.e. X and Y automatically became trustees of the trust and therefore sale by X and Y was valid as trustees

In any case, the law will not normally allow itself to be used for the benefit of the wrong-doer. The law cannot allow the heirs of X and Y to get the benefit of mistakes committed by persons through whom they claim the property. Therefore, in this case it will be difficult to establish that the sale of B was invalid and claim the property as trust property. 

The time period of execution of a will is normally 3 years (under Sec 137 of the Limitation Act), and you will need to show cause as to why it took so long to apply for the same, and that you did not benefit from the delay (which in this case is not possible). There will also be a question as to who will be the trustees of the trust if it is now constituted.

1 Like

Pritam Gupta (Teacher)     04 July 2014

So the million Dollar question is does this kind of Trust form before or after probate of Will. Common sense tells me that it should be created when testator executes Will but executed after probate of Will, since unlike living trusts, Testamentary trusts do not avoid probate of Will. 

Another pertinent question is that in the case of Testamentary Trusts of Hindus in India, is Will probate and/or activating Trust first mandatory before selling of any property? Also, are there any penal provisions for not activating it.

Also, for clarification Will does mention heirs of X and Y as future Trustees in a particular mentioned order.

Also in this kind of situation can it be said that both X and Y and their heirs have only a life interest in the property until it is sold by common consent? Then does the concept of Perpetuity come into play?

Regarding limitation period for Will probate it might be argued that such was not needed until now as previous property was at least sold with common consent of X and Y. But  there is no such common consent regarding the second property A between heirs of X and Y and so probate of Will is necessary to save Testator's property. Any other valid argument?



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