• Succession laws/property

My father and I, and my mother, live in a house that belongs to my mother. Self acquired property.

We have been here for 30 years now.

Other legal heirs exist but do not live in this house.

In case something happens to my mother before she writes a will on the house, what is the legal status of the house?

Can other legal heirs ask us to evacuate from her house in the absence of a will?

What rights can other legal heirs exercise in this situation? 

What rights can my father and I exercise in this situation, being legal heirs and having lived here for 30 years?

Thank you.
Asked 7 years ago in Family Law
Religion: Hindu

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20 Answers

1) on mother demise intestate your father ,you and siblings would be the legal heirs

2) your siblings can claim equal share in the house

3) file suit for partition for division of house by metes and bounds

4) merely staying in the house does not give you any special privileges

Ajay Sethi
Advocate, Mumbai
95208 Answers
7610 Consultations

5.0 on 5.0

Your mother can make a conditional bequest in the will that on her demise you and your father would have right to stay in said house and on your demise house would devolve on other legal heirs

Ajay Sethi
Advocate, Mumbai
95208 Answers
7610 Consultations

5.0 on 5.0

1.The owner of a proeprty can give someone by Will life estate which is limited right over the proeprty without any right of sale.

2.Since your mother is the actual owner of the house she can give this to anyone in its absolute right and you have no say in it and ultimately you may be asked by court to quit the said premises.

3. So when your mother appears to have given you the life estate then during your life time you have no worries of leaving it.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

In case something happens to my mother before she writes a will on the house, what is the legal status of the house?

Then the property would devolve equally on all the legal heirs or successors in interest.

Can other legal heirs ask us to evacuate from her house in the absence of a will?

They can file a partition suit claiming their share in the property, they cannot forcibly evict you from the dwelling house.

What rights can other legal heirs exercise in this situation?

What rights can my father and I exercise in this situation, being legal heirs and having lived here for 30 years?

The question of law is not how long you had been living in that house, it is who all can succeed the property that was left behind by the owner who died intestate.

You and your father can have your legitimate share in the property equal to that of other legal heirs.

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

Yes, she can include these terms as well.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

1) will can specify that during your and father lifetime you would be free to give premises on leave and licence and enjoy the rentals

2) no need to mention about guests in the will

Ajay Sethi
Advocate, Mumbai
95208 Answers
7610 Consultations

5.0 on 5.0

If my mother says in her will that after her lifetime:

1) Me and my father have full right to live in this house as long as we want, use any part of the house any way we want, including rent parts of it with full ownership of the rent to me and my father.

Since the property stands on your mother's name, she can very well express in the will in the manner what you have written above, there is no legal infirmity in it.

2) After me and my father's lifetime, other legal heirs of mother can inherit the property.

This also can be a valid condition in the bequest made by her.

Would that be sufficient to safeguard my and my father's primary concern - of being able to live in this house undisturbed and unthreatened, for the rest of our natural lives?

You can enforce the will by obtaining probate, if the will is not a registered document after which the conditions made in it can be enforced as per law.

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

Does she have to add other conditions, connected to sustenance and living, in her 'conditional bequeath'. Or are those things understood?

The bequest made may be conditional or unconditional, if it is conditional then it can be enforced accordingly.

Therefore all the conditions made therein or not shall go together.

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

1) legal heirs are at liberty to challenge the will

2) don't include any unreasonable conditions in the will

3) as beneficiaries under will they should be free to come and stay in the house

Ajay Sethi
Advocate, Mumbai
95208 Answers
7610 Consultations

5.0 on 5.0

1) it is for the testator to take a call as to whom property should devolve on her demise

2) she may impose conditions that other beneficiaries shall not stay in said house without your express consent and that of your father

Ajay Sethi
Advocate, Mumbai
95208 Answers
7610 Consultations

5.0 on 5.0

1. All the legal heirs of your mother will have equal right on your mother's properties after her demise, intestate.

2 Since you and your father have equal right on your mother's properties along with that of other legal heirs, you can be evacuated but others also can claim their right to live in the same house.

3. Other legal heirs can exercise their legal rights on the said property of your mother.

4. As explained above, you and your father also can exercise your equal right on your mother's prperties along with that of other legal heirs.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1.Your mother can execute the will with the said condition which will be perfectly perfectly legal

2. She can bestow complete living right and right to muse her said property in any way you two feel like without owning the said property and other's will own the said property equally only after the demise of the last of you.

3. Though it is not mandatory to get probate of will in Delhi, it will be prudent on your part to get its probate for getting the legal seal on the said will to ensure that you are not disturbed by them later on challenging the said will.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. Yes, the will mentioning the said terms and conditions is perfectly all right to safe guard your interest legally.

2. However, it will be prudent on your part to get the said will registered and obtain grant of probate from the court after her demise to get legal seal on the said will.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. The extra sentence is required with the substitution of 'Written Permission' in place of 'Permission'.

2. To ensure that the authenticity of the will is not challenged, get the will registered and probate as advised in my earlier posts.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. She should register the said will and you two should get probate of the will after her demise.

2. To be extra protective for you, she can lodge a police complaint herself alleging that the bother legal heirs are trying to occupy her house to evict you two against her wish and can get an injunction upon other legal heirs restraining them in entering in to her said house till the last of you dies.

3. This will completely authenticate her execution of the said will duly expressing her wish about her properties.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

Can other legal heirs not challenge this and demand to occupy parts of the property? Should an extra sentence as follows not be added?

The other legal heirs cannot claim any rights in this even if the bequest has been made as per your statement.

What type of extra sentence you think you can add to this?

3) Legal heirs, apart from my Son and Husband, may not use this house, unless it is with the permission of my Son and Husband.

If the conditions of the will is this way then others may not have any rights in it.

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

What deterrents are possible in this situation?

Instead of will, she can execute a registered settlement deed in both of your favor.

Mother is ready to take any decision to safeguard the LIVING conditions of Son and Husband till they are alive of course.

After Son and Husband's demise, other legal heirs (of mother) may occupy/sell the house.

In a conditional settlement deed, the above conditions may be incorporated properly so that the husband and this son have lifetime rights and enjoy the property till their lifetime.

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

1) will is better option

2) during her lifetime mother can enjoy the property and bequeath property to beneficiaries under will

3) settlement deed can be challenged by other legal heirs .

4) it should be stamped and registered

5) enclose medical certificate that mother is mentally fit at time of execution of will or settlement deed

Ajay Sethi
Advocate, Mumbai
95208 Answers
7610 Consultations

5.0 on 5.0

Request you all to give your views on whether you would prefer a Will OR Settlement Deed, in this situation.

Proper deterrents have to be placed, else the other legal heirs will try to throw out the Son and Husband and sell the property using whatever legal methods they can.

If this danger is apprehended then the execution of a registered settlement deed shall be a better option instead of beating the bush at a later stage without any purpose.

Settlement deed, OR Will?

A conditional settlement deed incorporating the above plan may be a better option.

Can anyone, except the Settlor, challenge the settlement deed? What precautions are required to prevent this?

Even the settler cannot challenge this settlement deed once it is executed and registered in the name of the beneficiaries.

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

1. " Other legal heirs may not visit this property without written permission of both Son and Husband" In place of 'may', it should be 'shall'.

2. "After the demise of Son and Husband BOTH" should be substituted with "After the demise of the last surviving person amongst the Son and Husband".

3. The registration of the will should be appropriate followed the FIR and court stay order as suggested in my earlier post to completely safeguard possession of her husband & son in her property without any disturbance.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

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