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Mukul Varshney (professional)     03 June 2017

Unregistered mother's will

My mother was running ill and was loosing hope day by day. During her illness she made her hand written WILL (unregistered) in presence of two witnesses. Unfortunately she could not survive to get her WILL registered.

After this incident (1 year later) my father made a registered WILL and in my father’s WILL there are clear details of my mother’s WILL with date of execution and other details.

BOTH THE WILLS TALKS ONLY ABOUT SELF-ACQUIRED PROPERTY. My parents did not get any ancestral assets.

Entire share of SELF-ACQUIRED Property (located in Pune, Maharashtra) in both Mother's WILL as well father's WILL is given to son instead of equal division between son and daughters.

My questions are

  1. Now does my mother’s WILL act like as a registered WILL?
  2. Mine is a Hindu Family and I am the only son. Can my sisters (Two Numbers) challenge my Mother’s WILL, since it is unregistered?
  3. Can I legally press my sisters to abide by my Mother’s WILL?
  4. Where do the WILL of my mother & father stay under Law, when it is placed for actual execution?
  5. What further need to be done from my side that I should not get into any legal trouble?

Kindly explain in detail and help.



Learning

 21 Replies

Kumar Doab (FIN)     03 June 2017

Handwritten WILL can fetch more authenticity.

Handwritten WILL duly signed by testator and witnessed by 2 witnesses might be valid.

It is not mandatory to register the WILL.

Kumar Doab (FIN)     03 June 2017

 

A WILL that is not registered cannot be termed registered WILL.

Even registered WILL can be contested.

If contested any WILL lands up in probate court of pecuniary jurisdiction and probate court shall decide on merits.

No one can press anyone to not to contest the WILL.

The WILL is probated at location of property: jurisdictional courts (pecuniary jurisdiction; Distt Court/High Court).

It is mandatory to probate the WILL at Presidential towns of Mumbai, Chennai,Kolkota.

Kumar Doab (FIN)     03 June 2017

 

1st try by submitting the certified copy of WILL, death certificate (s), Legal heir certificate(s) to O/o Authority e.g; MC, under whose jurisdiction property(ies) falls and complete the process of Testate Succession.

 

The procedure must be on website and in O/o Authority and requisite forms containing complete process and procedure, can be obtained from O/o Authority.

 

The O/o Authority may ask to submit NOC from all legal heirs and/or release advt in newspapers inviting objections, if any OR write by itself to legal heirs inviting to submit objections, if any, in fixed time. If NO objection is received in fixed time, O/o Authority may transfer property in the name of beneficiary.

 

If objection is raised O/o Authority may ask for Probate of the WILL.

Kumar Doab (FIN)     03 June 2017

 

Amicable settlement /NOC, registered family agreement may be some of the options.

Ms.Usha Kapoor (CEO)     03 June 2017

Handwritten will iss good as registered will. Since it is your parents self acquired property they have full rights to bequeath, sell,mmortgage etc to any one. Hence your title is good which you acquired under your parents will.Your siblings absolutely dont have any rights over yourproperty so willed by your parents.

dr g balakrishnan (advocate/counsel supreme court)     04 June 2017

Both regd or unregistered will have to be probated under testamentory jurisdiction of the high court of Bombay as your father ad mother might have died in maharashtra, properties can be anywhere - besides under this jurisdiction before probate administration, by CJI, under his administrative jurisdiction needs your copies of adverisement of two prominent news papers both in vernaculr and English press well circulated in the areas in Pune as also where they -(parents) died, that any one can claim their right to the said property within 30 days of the publication in press /media my be electrnic media too  as the objective is information on Will need to be public so that none of the climants is missed, whether the properties are self earned will be determined thereafter as the claimants may claim the properties are purchased by your parents by selling the ancestral properties too, if so contested u need to prove onus on you that the prperties are self earned by your parents ;if you fail the Wll is non est.So the properties will fall under intestate succesion under succession Act.

After 2005 amendment in succession Act, daughters to have equal claims like you you also need to note, you are nobody to question the statute, being some beneficiary under the Act.  

Mukul Varshney (professional)     05 June 2017

Hi Sir,

Thanks so much for your response.

My mother died in Lucknow, Uttar Pradesh. Can I get her WILL probated in High Court, Lucknow?

Mukul Varshney (professional)     05 June 2017

Hi Sir, Thanks so much for your response. My mother died in Lucknow, Uttar Pradesh. Can I get her WILL probated in High Court, Lucknow

 

Kumar Doab (FIN)     05 June 2017

1st of all why are you jumping to Probate of the WILL.

 

Mukul Varshney (professional)     05 June 2017

Dear Kumar Doab Sir,

What steps need to be followed?

From one lawyer I got response as below- which means I can get the WILL probated in Lucknow, Uttar Pradesh. Actually beside property in Pune, which was purchased all of sudden, we don't know anyone in Pune. Entire life my mother stayed in Lucknow and hardly once/twice visited Pune. Getting WILL probated in Lucknow is easy and workable for me. Hence asked.

---------------

1.In response to your query Section 270 of the Indian Succession Act is relevant which reads as under:
“Probate of the Will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, moveable or immoveable, within the jurisdiction of the Judge.”
2. Therefore, if your mother (testator) at the time of his death had a fixed place of abode, or any moveable or immoveable property within the jurisdiction of the Judge in Lucknow, then application for Probate may be filed in Lucknow in consultation with a local lawyer.
3.In this connection a decision of Hon’ble Madras High Court reported in (1990)2 MLJ 294 is relevant in which the Hon’ble High Court held as quoted below:
“As per Section 270 of the Indian Succession Act, Probate of the Will of a deceased person may be granted by a District Judge, if it appears by a petition verified as provided, of the person applying for the same that the testator at the time of his decease had "a fixed place of abode, or any property movable or immovable within the jurisdiction of the Judge.”

Kumar Doab (FIN)     05 June 2017

Originally posted by : Mukul Varshney
Dear Kumar Doab Sir,

What steps need to be followed?

From one lawyer I got response as below- which means I can get the WILL probated in Lucknow, Uttar Pradesh. Actually beside property in Pune, which was purchased all of sudden, we don't know anyone in Pune. Entire life my mother stayed in Lucknow and hardly once/twice visited Pune. Getting WILL probated in Lucknow is easy and workable for me. Hence asked.

---------------

1.In response to your query Section 270 of the Indian Succession Act is relevant which reads as under:
“Probate of the Will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, moveable or immoveable, within the jurisdiction of the Judge.”
2. Therefore, if your mother (testator) at the time of his death had a fixed place of abode, or any moveable or immoveable property within the jurisdiction of the Judge in Lucknow, then application for Probate may be filed in Lucknow in consultation with a local lawyer.
3.In this connection a decision of Hon’ble Madras High Court reported in (1990)2 MLJ 294 is relevant in which the Hon’ble High Court held as quoted below:
“As per Section 270 of the Indian Succession Act, Probate of the Will of a deceased person may be granted by a District Judge, if it appears by a petition verified as provided, of the person applying for the same that the testator at the time of his decease had "a fixed place of abode, or any property movable or immovable within the jurisdiction of the Judge.”

 

What is your own admission!

Kumar Doab (FIN)     05 June 2017

GO thru: Section 213 of Indian Succession Act, 1925

A very able counsel of unshakable repute and integrity specializing in such/succession/civil matters and that has examined all docs on record and inputs in person can advise you the best.

 

Online discussions have its own limitations.

Entrust the matter to your own counsels /law firm.

 

 

1 Like

dr g balakrishnan (advocate/counsel supreme court)     05 June 2017

once Will writer is dead probate is the next step under testamentory jurisdiction so not Luknow bench bench but allahabad bench of CJ - as there is Original jurisdiction as Allahabad HC is a charthered court like Bombay/Calcutta/Madras, i think.

dr g balakrishnan (advocate/counsel supreme court)     05 June 2017

Probate is a very simple operation since falls under CJ administrative functions - there is no argument but passive documentation on the basisof facts.

good lawyer is needed when claimants surface, once adverytiments in well curculated  dailies in the areas where all kinds of relatives are present, they will come out with claims; some lawyers say you just publish in not so wel circulted dailes for that would save you trouble of facing claimants - u need to put the will copy iprominently at at Allahabad bench, Lucknow bebch or if there are other hc bences in different cities r=that way your will will be put on notice bosrds of the benches for necessary  information to one and all.

generally you don't need a very expensive lawyer for will probating till your will is contested by claimants is my view sir.tks   


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