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vp (NA)     03 September 2013

Will of my father

Dear Sir,

My father died a year back. It has been signed by two witness- one of the witness has died.

The will was prepared about ten year back. ragarding his property (house and some Fixed Deposites) earned during his life.

I had forgotten about the will. But, recently one of relative reminded me about the will. When I serched, I found it from cupboard.

I have my widow mother living and elder married sister. According to will, whole property has to be in name of my Mother after his(my father's) death.Then after when my mother dies, I will be the owner of the property. Now, in this case, I have two questions.

1. What should I do to get the property transferred to my mother's name?

2. My mother is favoring my elder sister and not ready to remove my sister's name from the property. So, to can my mother make a separate will for the same property which (according to my father's will) has to be given to me after my mother's death?

Pl. guide me.

VP



 12 Replies

Shantilal Pandya ( Advocate)     03 September 2013

If the property is self earned by your father ,the   settlement  as per the will shall become operative , the mother has   been allotted a  life interest only she has no disposing power ,apply for probate  of the will  ,you as a beneficiary entitled to do so  filing of civil suit for a declaration of your rights under the will is also maintainable, relief against transfer by your mother  can also be asked for.

Namita Agarwal (---)     03 September 2013

I agree with Mr. Pandya 

2 Like

vp (NA)     03 September 2013

Thank you Sir.

I forgot to make some points clear. This property was earned by my father. He was a Govt. Servent. The house was build on the land given by Govt. on concessional rates to Govt. Servents. I had also supported financially while constructiong the house. Also, after few years during maintenance, and making fixed furniture, I had spent around Rs. 5 lac. This is just for your information. I am living in the house with my mother, wife and son. So, house is in our possession.

Recently my sister and her husband told me  that this house can not be transferred to anybody because land has been given by Govt. on concessional rates. They also informed that this kind of cases are in supreme court (Sub judice matter). When I inquired, some knowledgable person told me that there is prohibition on transfer by selling to some external party but not on transfer to the family members name after death of the person. At present also the house is on my father's name. I am not in a position to apply for some problems related to  Municipal Corporation / Electricity Company etc. because the house is not on name of any living person. Because my sister is wrongly representing to my mother, my mother is not ready to remove her name.

So, what can I do? Pl. help me

VP

STUDENT.... (.......)     04 September 2013

As per Law..

 

If there is No WILL then You, Your Mother and Your Sister is the legal hier.

 

Where as there is a will which was wrote by your father then my suggestion to you is don't transfer the property on your mother name right now, after her death you can submit the death certificate of your father and mother and get the property transfer on your name.

 

And if your sister help your mother to transfer the property on her name then also either she need to produce the copy of WILL or need your signature for transfering the property (Mentioning that there is no WILL made by the owner) since you become the legal hier don't sign the any paper in that case.

 

Now if incase you also help your mother to transfer the property on her name as well then make sure you mention in the papers that property is getting transfer as per WILL made by your father.

 

Like this your mother will have no right to transfer her share or property to your sister, since your father has already mentioned in his WILL that after him the owner will be your mother but after her you will be the owner of the aforesaid property (Which means 100% share will come to you).

 

 

ALso I agree will Pandya Sir...

 

Thanks,

1 Like

Shantilal Pandya ( Advocate)     04 September 2013

 

The  opinion expreesed  in my first posting is also workable to meet with your second querry.  let every one interested to deny your rights  under the will to now existance and effect of the will  even by  serving a notice  to them.

2 Like

vp (NA)     06 September 2013

Again thank you Pandya Sir.

I have one more query in my case. Suppose my mother dies due to age or seekness before the house (presently on my father's name) is transferred on her name. Now,

1. What will be the status of my father's will?

2. Will my right as the second beneficiery (as per will) be maintained ?

3. Will my sister be considered as heir for that property?

VP

Shantilal Pandya ( Advocate)     07 September 2013

You will only be the absolute owner of the property in that case  as your mother was given only  life time   interest.

STUDENT.... (.......)     07 September 2013

Pandya Sir has already replied to your Query...

 

1. 100% Valid.

2. YES.

3. NO, she cannot have any right on the properties mentioned in the WILL.

 

 

One major Question to ask...

Was the WILL registered in the court or not, because of the same was not registered in the court then there is a problem. If it is registered then there is no problem.

 

I asked the above question because some people do write there WILL and get the same witness done in front of his/her family members but don't register the WILL at all.

vp (NA)     10 September 2013

Dear Sir,

My father has not registered the will. Moreover, out of the two witnesses, only one is alive. This is present situation.

I would like to know what problem may occur for unregistered WILL in this case.

VP

Shantilal Pandya ( Advocate)     10 September 2013

non registration does not affect the validity of the will it can be proved even through one  attesting witness

STUDENT.... (.......)     11 September 2013

Whether registered will or unregistered, it will have to be proved before the court when disputed.

 

So here I can give a tip where in you can safe guard your self.

 

You mentioned that out of 2 witness 1 has died and the other one is still alive.

 

Since No one knows how much he/she will live.

 

So to safe guard your self it will be better if you can have the copy of his signatures(2nd Witness). This will help you in proving the signatures of the 2nd witness are true or not, if incase the WILL is challanged and at time of challange the lawyer of other party will surely ask you to prove the signatures of both the witness and if the 2nd witness gets expire at time when the WILL is challanged/before challange then the problem may occur inorder to prove your self right.

 

You can do one thing you can ask the 2nd witness to lend you some amount of money for a week and take that money in the form of cheque then visit to some cyber cafe and take the scanned copy of the cheque and photocopies of that cheque and keep that in safe.

 

Then en-cash the cheque and return that money back to that person through cheque. Like this you will have the copy of his signatures as well Directly from the Witeness and cheque en-cashed will be proved from the bank statement (Your and his) and if incase you have to pay him some amount of Interest as well then also there is no problem to safe guard your self.

 

And then the scanned copy of cheque and the photocopies will work as a trump card when the WILL is challanged after the death of 2nd WITNESS as well.

 

Since as mentioned by Pandya Sir "non registration does not affect the validity of the will it can be proved even through one  attesting witness" and if the Witness is not alive then how will you prove that the signature mentioned on the WILL belongs to him.

 

NOTE: MAKE SURE YOU VERIFY THE SIGNATURE MENTIONED ON THE WILL AND ON THE CHEQUE ARE SAME.

 

 

 

Thanks,

Kunal

vp (NA)     15 September 2013

Dear Sir

Thanks for clear guidance.

I have a doubt regarding probate of will.

  1. The signatures of the witnesses have to be proved before the court. Now, suggestion given by Mr. Kunal is a nice one. But, are not there any other ways? eg.  Can son/daughter of the witness (in case witness has expired) give assurance about the signature in the court ? Is it valid? Pl. tell me other ways to prove the validity of the signature of the witness.
  2. I am living in Ahmedabad, Gujarat. Is there any specific rule/ law (differing from other states) regarding the will in Gujarat?

VP


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