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(Guest)

Olld will can it come into effect ?

We are Catholics residing in  Bandra in a old ancestral house.

Currently occupied by my family and my sisters. Both staying  in different parts of the house. Our father had made a will stating the house was for me only. He expired in 1978 but his will was not executed /registered or probated as our mother didn't want it executed. She expired in 1994. Now we were living with cordial relations until now but this good relationship has changed. I am looking to enforce my father's will and have my sister removed of the property. She has been living there since birth along with her family (husband and 3 children) and has all residence proof docs pan card, passport, ration card  etc. Can she and her family be removed of the property ? Can that old will be brought into effect, is there a good chance it will be challenged ? 



Learning

 12 Replies

Kumar Doab (FIN)     06 October 2015

You seem to have consulted and have done some homework.

You have posted that there has been NO Dispute.

It is believed that WILL is not doubtful, and is valid.

 

In Bombay it is mandatory to probate the WILL.

 

You may show the WILL and all sorounding facts to an able lawyer specialzing in such/property/family matters and personal laws applicable to your faith, before you proceed further on your own.

 

 

Kumar Doab (FIN)     06 October 2015

Generically speaking; There is no limitation, however your lawyer may like to cover everything ,hence reveal each fact and detail to your able lawyer.

 


(Guest)

Thanks..Yes will need to get hold of lawyer to go through the details

At the moment I am just doing the ground work for my own knowledge.

Will I need the witnesses, who attested the will to be present in court ? I am not sure if they are even alive. if they not alive can it proceed? Also is it mandatory that a doctor sign on the will ?

Kumar Doab (FIN)     06 October 2015

If the doctor has signed it is better and doctor may also be called to witness.

If doctor has not signed the WILL may not become invalid.

 

Make sure of everything including if the witnesses are alive and inform everything to your able lawyer.

 

saravanan s (legal advisor)     06 October 2015

the limitation period for executing the will is twelve years from the date of death of the testator.


(Guest)

Saravanan this is the first time I have heard of a time limitiation on the execution of a will, The general consensus and also as advice by Kumar above, is there is time frame for execution. Where is this limitation law mentioned ?

Kumar Doab (FIN)     07 October 2015

You have delayed and the delay shall aggravate the doubt.

When your able lawyer prepares for your case your able counsel shall ensure that there are no suspicious circumstances sorrounding the WILL and for not producing the WILL.

The right to apply for a probate accrues from day-to-day so long as the will remains unprobated.

If you are able to prove the execution there shall be no doubt.

 

Indian Succession Act does not put and any time bound to probate the WILL.

 

Reveal everything to your able lawyer and understand the merits,remedies in your case, before you proceed further.

 

 

1 Like

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     26 January 2016

1.  A duly executed will can be activated anytime, after the death of the will-maker, without any exceptions, whatsoever, even "IF" the witness are dead or not traceable.


2.  In the matter instant, "AFTER" due probate of the will, the "title-ownership" of the deceased's entire  property will be mutated in favor of the mentioned legal heir /beneficiary.  BUT the sisters family CANNOT be evicted, and will continue to occupy the premises, without title-ownership rights, but on mutually agreeable terms and considerations.


Keep Smiling .... Hemant Agarwal
Read Articles: https://hemantagarwal21.blogspot.in/?view=sidebar

1 Like

Adv Akhtar Ali Sheikh (Property Law Consultant)     26 January 2016

I suppose your father has validly signed the Will contrary to what you say that it is not executed. Executed means that it is signed. You should not have used the word "executed" with registered and probated. 

You may probate it but it would be as good as a suit because your sisters may not be willing to give their noc for probate which is a must , in its absence the probate petition is converted into a suit. 

1 Like

Kumar Doab (FIN)     27 January 2016

Finally you need to consult a seasoned/senior counsel.


(Guest)

Thanks all.  From what I understand from your responses is this will land into a court case within the family that will take 15 - 20 years to resolve.


(Guest)
Yes she used to house tax in cash to me. Power consumption/water tax - Yes. She has gas connection/bank account/passport on her name too Since 30 years. Did your father have grandsons or granddaughters the mother of whom is your sister? - Yes she has 3 children 1 boy 2 girls

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