• Execution of my father unregistered will

Hello,

My father had created a Will in which he willed his property (2 homes) to his Wife (my mother). This is a self-acquired property of my Father. This is Will unfortunately was not registered. Since i was named as the Executor in the Will, I started the process of getting the "Khatha" of the 2 properties changed over to my Mothers name. The Revenue Department in Bangalore asked that we provide a no-objection letters from all the Children, even though I clearly explained and provided documentation (including the copy of the Will) stating that this was a self-acquired property. We are 3 brothers and my eldest brother and I have gave a no-objection letter and said that we had no objection with the house being transferred to our Mother. But my middle brother, who sadly abused my parents all their lives has given a objection letter against the transfer of Khatha to my mothers name. We petitioned (a request letter) the Revenue Department to resolve this matter by asking to provide reasons for his objection, have a hearing and make a decision. They called my Mother and my middle brother for a hearing and recorded my mothers statement on record, in which she re-stated that it was a self-acquired property what was willed to her by her husband. He had shown up with a Lawyer and his statement was recorded later (with his Lawyer present). His Lawyer has filed and asked for a time extension. We were told about this by the Revenue Officer a week after the hearing and she also told us that they will be given a total of 3 extensions, before which they have to show proof as to why the property should not be transferred to my Mother's name. 

As there was a clear executed Will and I thought the transfer process would be a mere formality, I did not see the need to use the services of a Lawyer. But now that my brother is causing problems and has asked for an extension through his Lawyer, I am trying to figure out if I also need to take legal help to resolve this matter?

On what basis can the transfer of property be held up a mere objection from one Son, when there is a proper executed Will? 

When my Fathers Will clearly states that the he has bequeathed the 2 self-acquired property to his Wife, why is a no-objection from the 3 children even required? As stated above, my eldest brother and I have provided the no-objection letter. 

Has he filed for an extension to dispute the Will or just hold up the process? 

How can I best move forward to resolve this matter? Do I need to get Legal Counsel?

Thank you!
Asked 4 years ago in Family Law
Religion: Hindu

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12 Answers

Apply for the probate of the court. As your executor you can approach the probate court or civil court of local jurisdiction and apply for probate.

A probate will give legal santity to the will.

Once you obtain probate the department shall transfer the land.

Procedure for Obtaining Probate

A petition for probate must be filed in court along with the will in question. It should contain the following facts.

the time of the testator's death

that the writing annexed in his last will and testament

that it was duly executed

the amount of assets which are likely to come to the petitioner's hands, and

the petitioner is the executor named in the will

The application for probate shall be signed and verified by the executor or beneficiary.

The petitioner shall furnish a blank stamp paper of value equal to the requisite court fee, along with the application. The court shall grant the probate on the said stamp paper.

After receipt of the petition, the court issues notice to the next of kin of the deceased to file their objections, if any, to the grant of probate.

A general public notice is also given in a newspaper.

The petitioner is thereafter asked to establish the

Proof of death of the testator;

Proof that the will has been validly executed by the testator

Will is the last will and testament of the deceased

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Civil lawyer or any lawyer who is aware of the Succession act and procedure for obtaining the probate.

The court will hear it out since the will is valid and made by your father, then his objections won't sustain and court shall grant you probate.

See the revenue authority donot have power of court the court shall not grant such delay tactics and unnecessary objection on valid will.

The procedure is well settled the court shall grant you probate after issuing notice and settling dispute. Also the probate gives legal validity to will so it shall settle any future dispute also. It will take time of around 6 months filing issuing notice hearing objection and granting probate.

Sir the best chance is probate as it is legal document for unregistered will and it shall be settled once for all. Even if today revenue department takes any decisions that shall not be binding and will lead further disputes. Probate court won't consume much of your time.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Yes appoint a lawyer and fight the dispute effectively. You can show that the will is a legal and binded on all.

Prashant Nayak
Advocate, Mumbai
27261 Answers
88 Consultations

4.4 on 5.0

1) you have tol file petition for probate of will

2) enclose father death certifcate

3) affidavit of one of attesting witness

4) notice would be issued to legal heirs

5) if no objection is received you would get probate of will

6) if any objections are received it would be converted into testamentary suit

7) suit would take 10 years to be disposed of

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

1) if brother objects to grant of probate it gets converted into testamentary suit

2) suit takes years to be disposed of

3) if there is no contest you will get probate in 6 months

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

Dear Sir,

It is high time to state that in various judgments the Courts held that Revenue Officers have no power to adjudicate the matter when objection raised to Will. The relevant citation is found in the link. Even if you take orders in your mother favor they may not stand to the test of Judiciary. Please see Para No.5 the following Judgment.

===========================================================================================

http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/433902/2/WP[deleted].pdf

========================================================================================

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1. Registration of 'WILL' is only optional and not a must.

2. To be legally valid, there should be 2 witnesses and their signature.

3. As per your narration it was your father's self acquired property and his intention of bequeathing the property to his wife is legally within his legal right as he was the absolute owner of the property.

4. No need to obtain probate.

5. There was no need to take No Objection Letter by the BBMP authorities from the Children of the deceased to transfer his self acquired property to the beneficiary by recognising WILL executed by the deceased.

6. Meet the concerned BBMP Assistant Revenue Officer and apprise him of the facts.

Shashidhar S. Sastry
Advocate, Bangalore
4170 Answers
258 Consultations

5.0 on 5.0

Dear Sir

This should have handled at the initial stage properly. Now this has cross certain stage. Now the time borrowed to file the case and stay the proceedings.

Now the probate petition is also a lengthy process. To prove the will you need to examine the witness in the will. Then only it is going to be processed in line.

Feel free to reach us for assistance and to resolve the issues.

Shettar SS
Advocate, Bangalore
182 Answers
1 Consultation

4.4 on 5.0

Dear Client,,

There`s no need to get into useless Litigation.

Probate is not necessary in Karnataka (Optional).

Next, neither any authority can ask to apply for Probate if WILL on the face of it, is duly executed and attested by 2 witnesses.

Even if objection is called, such objection can not be taken seriously until not baked by proof as to of forged WILL.

Avoid what his advocate says, Let them approach court if have any objection. Any disinheritance will certainly rise objections which dose not mean WILL is not valid.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

You proceed by filing for a Probate of the unregistered WILL before a civil court in Bangalore or where the property is situated.

In order to do this you personally do not need to come to bangalore, you may authorize your older brother through a Power of Attorney to file the case on your behalf.

Yes all the legal heirs of your father have to be made parties in this case. Your brother, you and your mother will be the Petitioners, and your younger brother will be the lone respondent (As he has filed objections before the revenue authority).

Notices will be issued to him, and he has to justify his objections for the grant of probate of the WILL. If he is unable to do so, then the probate will be granted and you can get the Katha and other related issues automatically sorted out. It will be time consuming as your younger brother is going to delay the process.

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

It is a routine formality to obtain NOC from all legal heirs for enforcing an unregistered will.

If there is an objection to the will then it need to be probated through court of law.

You can file a probate OP before court and obtain probate which will be sufficient to enforce the bequest of the will.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

Since the matter is objected to by one of the legal heirs of the deceased, the next step to be taken in this regard shall be by legal process only.

You cannot help it even if it is time consuming.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

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