NVS Sankaram 12 May 2023

Will on a joint property

A is property owner and deceased a decade back. B is the Wife to A. A & B had a children C ( A Male deceased 8 Years back) and D E F ( Female all are married and living at different places. Note : In this issue All are Hindus only. A left some Ancestral Intestate properties to B C D E F(All are married). B recently passed away .But B executed a registered secret will to D's husband(DH) as an executor and said With Out DH consent ie., The Portion what B had a right during her life time( Pl. Remember this is not written any where to B from A)and other portions of Property of A should not be divide Regarding this Will none of the C's Wife E F Knows this at the time of execution. After B's demise this will came into lime light., And B mentioned that will D E F all should not divide the Property without executor consent. Now this D's husband (DH) is not ready to Probate this will. Question is : What type of right B had to execute a will and appoint D's Husband as an executor?. Is this will is valid?.

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T. Kalaiselvan, Advocate (Advocate) 13 May 2023

B has got right to transfer the properties lying on her name or the undivided share of property to which she has a right, by a testamentary disposition, i.e., by a Will, in favor of anyone of her choice and she can appoint anyone as the executor for the Will..

Therefore if the Will has covered the proprties to which she has got no rights, they will be excluded and the execution of the Will shall be confined or restricted to the share of the testator alone.

Thus the Will is valid to that extent alone.

Since all others have rights in the property for a rightful share in it, the other legal heirs or successors in interest can file a suit for partition and get the propery divided through court of law and acquire their legitimate share with separate possession.