• Will probate

My dad passed away on 01st Nov 2017 .
In one partition deed between him and us (first wife sons) ;he got the property for 1 acre in joint for himself and first wife. But in RTC and mutation only dad name is present.
His First wife passed away in 2008. 
Dad has made a will on this property in 2013 to pass on to second wife and her kids. Now the respective government official are asking for probate of will. what is the need for probate? what happens to joint property after one of the joint owner has passed? Can we contest the will ? Or the property goes to his second wife and kids as mentioned in the will?
Asked 4 years ago in Property Law
Religion: Hindu

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11 Answers

1) you are only legal heirs remaining of your father so second wife and sons automatically.

You can make an application to sub registrar to register name on the property 7/12 Extract or property card.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

1) on demise of father his 50 per cent share in property would devolve on his second wife and her kids as per father will

2) executor has to apply for probate of will

3)you can object to grant of probate

4) file affidavit opposing grant of probate

5) it would be converted into testamentary suit

6) it has to be proved that father executed will in presence of 2 attesting witness

Ajay Sethi
Advocate, Mumbai
87901 Answers
6207 Consultations

5.0 on 5.0

Probate means the verification of the will by the court and the will can not be given effect to without a probate.

The co-owner will get his/ her share and the other share will devolve upon the legal heirs.

You can contest the will

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

In case you have the original partition deed in respect of the 1 acre joint property in the name of your father and first wife sons, get it recorded in RTC and mutated in joint name by submitting the copy of the partition deed.

Secondly, in case your father has made the Will, it is to be seen that he bequeathed his 1/2 share or entire property to pass on to second wife and her kids. If it is so, the Will is to be probated by second wife and her kids. You are the owner of the 1/2 share by virtue of partition deed. You can contest the Will in case entire property is bequeathed to second wife and her kids but for 1/2 share you have to give no objection only then it will be probated.

Dalip Singh
Advocate, New Delhi
1039 Answers
36 Consultations

5.0 on 5.0

1. The mutation certificate only establishes the possession . it does not vouch for title of the proeprty.

2. So even if your mother's name is not there in the mutation certificate then also her share in the 1 acre of the proeprty does not go away.

3.in that event your father can not transfer her share without her consent and signature to any other person.

4. So the Will has no value as far as half share of your mother in the said proeprty is concerned.

5.So apart form contesting the Will to calm her share of proeprty she or you can

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1. Where is the property situated? Probate is mandatory only in presidency towns like Mumbai, Calcutta and Madras.

2. In the event of intestate demise of one of the joint owners his share devolves through succession on his heirs. The legal heirs of a Hindu male dying intestate are widow, mother and all children. Your father's second wife is also a legal heir to your father. However, only the biological children born out of second wedlock are his heirs, not the children born to the second wife before her marriage with your father.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Hello,

1) The need of the Probate is to ratify the will and to dispel any disputes and doubts so that the desire of the testator can be implemented as set out in the Will.

2) When the Will is getting probated, all the interested parties/heirs are going to be notified and of course you can contest/challenge the Will .

3) The fact is that the testator can not make a Will of what he does not legally own. If the property was jointly owned by the father and his first wife, after her demise, if she died intestate, her children and the husband has equal shares in her portion of the 50% share. Therefore the mutation entry itself needs to be questioned.

4) As the property is self acquired by the testator, his making a will in favour of the second wife and chidren through her is applicable only to property that he alone had ownership of.

S J Mathew
Advocate, Mumbai
3381 Answers
175 Consultations

5.0 on 5.0

Since the Will is under cloud, the revenue or government official is seeking probate of will.

The bequest made in the will can be confirmed only when the will is granted probate by court competent.

By the way the will can be enforced only after the lifetime of the testator, whether your father is living or is no more?

The property under joint ownership will be equally owned by the joint owners and on the death of one of the owners, his/her share shall devolve equally on her/his legal heirs

The other owner cannot take away the entire property in any manner for whatever reason.

T Kalaiselvan
Advocate, Vellore
78059 Answers
1543 Consultations

5.0 on 5.0

As per the rules of the interpretation of the Will:-

In the matter of "Will", the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Undoubtedly, it is the last Will which prevails. Therefore, the Will if executed in accordance with the law shall be valid and will override the earlier registered instrument.

Need for probate?

Probate is the copy of the Will certified under the seal of the court of competent jurisdiction with a grant of administration to the estate of the testator(deceased).

As per S.213 of the act, No right as legatee or executor can be established in any court of justice unless a court of competent jurisdiction has granted the probate of the Will under which the right is claimed.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

Dear Client,

Lapse of entry/mutation, do not have much effect as terms of partition deed will prevail.

After the death of mother, her share will inherit in her legal heirs by equal share i.e. Husband and Child.

Probate is not compulsory in Karnataka.

If his intention to bequeath is clear from the WILL, than up to his share in joint 1 acre will devolve in second wife and her kids by testamentary succession.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Dear Sir,

Get a Probate and then file a suit for partition. For more clarifications try to visit my office.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

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