Mousumi Sen (Owner) 12 April 2014

Tricky question about will probate

All the legal experts out there, here are 2 questions to test your knowledge:

A plaintiff started a Declaration and Injunction case about an immovable property invoking certain embargos given in an unprobated Will which were subject to be violated. Later on during the cross examination stage of this case plaintiff was repeatedly asked about why this Will was not being probated but its clauses were being referred to. Therefore the plaintiff decided to give the Will to Probate court in an advanced stage of this Declaration suit.

1. Are there any legal problems in giving the Will for probate when some of the points given in the Will are already under question in a separate court under the Declaration suit?

2. Since it is undesirable that the court in the earlier Declaration suit will arrive to its conclusions without the probated Will, so a STAY in proceedings in this Declaration suit is being contemplated by the plaintiff until judgement by probate court. Is this possible and under what justification?

Therefore I am asking whether there is any violation of section 10 of CPC (1908) or problems related to res judicata in firstly probating the Will and secondly asking for STAY in an earlier suit until Will probate judgement?

Reply Follow

4 Replies

VINOD VERMA (C E O) 14 April 2014

A Will has to be got probated within 6 months to make it valid and legal document, after the death of the Executor. Exceptions for getting further time are there depending on individual cases

Mousumi Sen (Owner) 14 April 2014

Sorry it is Letter of Administration and not Will probate.

shiwajee prasad 07 January 2016

Mother of A(Dever) got a residential house through gift deed from her husband, later husband died. mother has two alive sons and two daughter in law. Elder daughter in law got a will in own favour from her mother in law wothout knoledge of her Dever A and her wife with intention to grave the share of Dever. Mother of A died in 2011.Probate of will is not being done yet i.e.2015.witnessess in will are two illeterate driver ,

Is this will enough to grave the share of her Devar in absence of probate.

Please advise fate in the same.

Adv Akhtar Ali Sheikh (Property Law Consultant) 02 February 2016

The elder daughter in law being the rightful beneficiary under the WILL of her mother in law SHALL be entitled to the property to the exclusion of devar, the testator can bequeath to anybody and it is not necessary that Will being made must be known to people at large. Illiterate witnesses are competent witnesses. Probate can be had anytime, there is no limit contrary to 6 months mentioned by somebody above, provided the Will was executed by the mother in law and it was not forged by the elder daughter in law.