My grandfather willed his flat in Calcutta in my mother's name. My grandmother (now deceased), and two aunts signed the will as witnesses. My grandparents had six kids of which two are deceased. However my two aunts who were witnesses of the will are alive. My mother and her living siblings (including the two who signed as witnesses) do not share a good relationship. My question to the esteemed lawyers on this forum is: a. Can my mother probate the will without involving her siblings? b. How much will the probate cost be? The value of the apartment is approximately 40-50 lakhs now. c. Can legal heirs of my mother's two siblings who are now deceased lay claim to the property? d. Can my mother's two sisters who signed the will as witnesses in 1997 now turn back on their promise? e. Would highly appreciate a solid answer. My parents are senior citizens and I would like to resolve this issue at the earliest.
1) executor has to apply for probate of will
2) if executor refuses to do beneficiaries can apply to court
3) affidavit of one of attesting witness is necessary to prove that testator executed will in presence of attesting witnesses
4) court fees is state subject and varies from state to state
5) legal heirs can oppose grant of probate . in such case it would be converted into testamentary suit
6)legal fees vary depending upon lawyer engaged by you
1. Siblings needed to be added as party.
2. 50000 is the highest CF rest is court expenses and advocate fees.
3. All legal heirs to the property needed to be included as party.
4. U will find difficulty in proving to will and there is every chance they will face legal consequences
1. 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 this definition, it shall include all legal heirs of the deceased as parties to obtain a probate.
3. As per S.10 of the succession act, rule 3 - the heirs in the branch of each pre-deceased son or each pre-deceased daughter shall take between them each one share.
Thus, the legal heirs of the deceased shall stake claim in the property.
1. All the legal heirs are to be made the party.
2. A lawyer might charge you something between 20k to 50k
3. They can challenge the will, if they wish to.
4. Yes they can
5. Let me know if you want any help from me.
Regards
Being the witness to the Will executed by your grandfather, your aunts can not go behind and witness something ells it is stpoped under the Evidence act.
Your mother can get the will probated.
the siblings can not claim any right over the property which is under Will to your mother.
Thank you for your valuable inputs. My additional questions are: a. My mother and father have been taking care of the property for the last 20 years. Taking care includes paying municipal taxes, electricity bills, civil maintenance, house interiors, building society charges. My parents have retained the bills of all these expenses for the last 20 years since my grandfather willed the apartment. All tax payment receipts are in father's name. Does this indicate ownership by my mother? b. Can my parents put the above property on rent with the non-probated will and the details provided on point 'a' above? Can a lease/ agreement be drawn based on the above? c. If yes, can my mother and father sign the lease agreement as lessors? d. Can any legal complications arise if my parents decide to give the property on rent? e. My parents have occupied the property on and off for the last 20 years, unopposed by anyone before my grandfather died in 1998 and even after that. f. My father also built an extra room which is much bigger in size in the property. My father also has written acknowledgement of this expense. I would highly appreciate a definitive response so that I can decide on the next steps. Regards
1) payment of bills indicate possession by your parents not ownership
2)if property has been transferred in your parents name they can give premises on rent
3) it is better to apply for probate of will
4) probate is judicial proof that will is genuine
5)if property not mutated in name of parents siblings can claim share in property
1. No, it raises a presumption of possession.
2. The other legal heirs can claim mesne profits through the suit.
3. Suit for mesne profits and accounts by other legal heirs.
As said earlier, the other legal heirs if ignorant of their rights and law, then, you can amass the property to the exclusion of all. If not, it shall be an undecided dispute forever.
1. IF disputes relating to Will, is created by any legal heir /witness, THEN it would have to be resolved by conducting proper suit proceedings in the Court.
2. IF the Will is not proved positively, THEN it becomes null & void and all the residual legal heirs would be entitled to their rights /share on the property.
Keep Smiling .... Hemant Agarwal
since the property under the Will.
The ownership of the property transfer only on the death of the principal.
in the circumstance until the probate your mother is not the owner of the property.
by paying the Tax and other out going to the property your mother can not become owner probate is necessary.
Yes this indicates the adverse possession.
I would rather advise you to get the will probated and then give the property on rent, as your parents will only get the clear and marketable title of the land once the will is probated.
Later, there can be problem in claiming rent and filing eviction suit, if need arises.
Regards
1. Without taking of Probate the Will ahs npo value. While applying for Probate the consent of all legal heirs is required and if any one of them opposes then the validity of the Will has to be proved in the court.
2. In Original Suit seeking probate the attesting can refuse admit their own signature and dispute the authenticity for Will.
3. The cost varies with each advocate.
4. Taking care of the proeprty including paying taxes does not put your mother on any higher pedestal and if Probate of the WIll is not proved then all your aunts shall have equal share in the proeprty including the children of the deceased siblings.
4.Your mother can induct tenant in respect of the proeprty but in the event the Probate if not eventually not granted then ij the partition suit filed by your aunt to claim their due share in the property would ask for share in the rent collected by your mother so fart.
5. Your long possession of the joint proeprty doe snot make your mother sole owner of the proeprty unless and until the Probate of the Will is granted.
No they can not and the occupancy will not be counted as unopposed or unobstructed
My question to the esteemed lawyers on this forum is:
a. Can my mother probate the will without involving her siblings?
Grant of probate to the will in the presidency town i.e., Calcutta is mandatory.
The procedures as per law for seeking probate is to be followed. Her siblings cannot be ignored in the probate petition to be filed before court.
b. How much will the probate cost be? The value of the apartment is approximately 40-50 lakhs now.
The court fee shall depend on the state court fee and suit valuation act, apart from this the advocate fee shall also depend on the advocate who you may desire to engage, so you can enquire both form local.
c. Can legal heirs of my mother's two siblings who are now deceased lay claim to the property?
If the will is proved and the court grants probate then they may not be able to lay their claim.
d. Can my mother's two sisters who signed the will as witnesses in 1997 now turn back on their promise?
No, it would not be possible at this stage.
e. Would highly appreciate a solid answer. My parents are senior citizens and I would like to resolve this issue at the earliest.
What do you mean by solid or liquid reason, the provisions of law has been explained by rendering the opinion.
Does this indicate ownership by my mother?
This clearly indicates that the beneficiary enforced the will and taken possession, however since it is mandatory to obtain probate, you may have to it in order to have a clear and marketable title to the property.
b. Can my parents put the above property on rent with the non-probated
will and the details provided on point 'a' above? Can a lease/ agreement be drawn based on the above?
They can rent or lease out the property on the basis of the will in their favor.
c. If yes, can my mother and father sign the lease agreement as lessors?
Since your mother is the owner or beneficiary of the will, it is her property hence she only can enter into the lease agreement.
d. Can any legal complications arise if my parents decide to give the property on rent?
In the given circumstances, there should not be any problem.
e. My parents have occupied the property on and off for the last 20 years, unopposed by anyone before my grandfather died in 1998 and even after that.
Law of adverse possession will not operate because for partition there is no such restriction, hence let your mother get the will probated through court competent.
f. My father also built an extra room which is much bigger in size in the property. My father also has written acknowledgement of this expense.
That is his problem because he is not the owner, hence his expenses cannot entitle him a legal ownership.
a. Your mother shall have to seek the grant of probate otherwise the said will shall have no value more than a scrap paper. Involving the unfriendly witnesses can not be avoided.
b. The total cost can not be foretold exactly but it should be within Rs.1.25 lakhs plus the appearance fee of the lawyer for 4 to 6 days @Rs.3 K per appearance.
c. Any body can lay claim on the said property which you can not stop. You shall have to take probate of the will to claim the said property for your mother.
d. What have they promised in the will? they have witnessed execution of the said will. If they deny having signed the said will as witness, their signatures shall be sent for forensic verification.
e. You shall have to take logical steps anticipating the resistances from your relatives. Some might say that the will was executed under coercion which your lawyer shall have to contest fittingly.
1. No the fact that your parents are taking care of the property and has been paying tax for last 20 years does not convey the title of the property in favour of your mother. Registered deed of conveyance or probated will shall convey such title.
b. The property does not belong to your parents till the will is probated. So, dealing with the property for commercial gain will not be legally correct.
c. As explained above, such execution of agreement as owner of the property without probating the will shall be unlawful and can be challenged by other legal heirs of your grandfather.
d.Yes, the other legal heirs of your grandfather might file partition suit and even lodge a police complaint alleging that your mother has let the property out by falsely claiming that she is its owner when the property stands in the name of her father.
e. The fact that the property is in possession of your mother will be an added point while claiming probate of the will or while challenging any contest to the application for probate, if filed by other legal heirs of your grandfather.
f. If your mother does not get the grand of probate of the said will, the entire property including the extra room built by your father will be considered as the property of your late grandfather (even if it was constructed after his demise) which will be claimed equally by all his legal heirs.
Your mother being beneficiary can go for probate. A beneficiary or executor can probate a will. If the will has bequeathed any property to the deceased their legal heirs willl get the share. They will turn back or not is hypothetical issue. You have to pay the applicable stamp duty as per the ready reconer of the state. Other additional fees vary from lawyer to lawyer.
