• Does daughters daughter have right to share in property?

My mother in law expired in 2010. Her father expired in 1994. The father had self acquired 3 storey house. He made a will, by which he gave the whole property to his son. The son and daughter(my mother in law were signatory to this will). 
However, after marriage the son started misbehaving with his parents. Hence he made a new will before his death in which he cancelled the original will benifitting the son and left the property to his wife. His wife passed away in 2003.
The son passed away in 2018 Jan. He is survived by his wife and only daughter who is married.
 In this situation, does my wife who is the only daughter of my mother in law, have any right or share of this property?
Please advise.
Asked 4 years ago in Property Law
Religion: Hindu

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31 Answers

Yes she will.have share in the property the 50 percent share of your mother in law shall go to her daughter.

See you have confused the facts a bit or I may say complicated it , so as I can understand is .

There is father F. Who is having son F and daughter M(your mother in law). No F gives property to his wife W. Who expired in 2005. On her demise the property will equally divide between S and M as no will.from W.

Now S expired in 2018 and M in 2010.

So M share goes to her on ly daughter your wife and S share to his daughter and wife.

So your wife is 50 percent owner of property and she can file.a suit for partition and possession if the S family is not ready to give her share and register partition deed mutually.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear Client,

After mother death, her poreoprty (through WILL) inherited in her children equally, 50% each. And on his death, property will devolve in his wife and daughter equally. 50% each. Your wife is already hold 50% in the property and son 50% share will divest in his wife and daughter.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

As per your version a new will was made in your mother in law name and if it was mutated in her name yes your wife has right to seek for half share in all the property acquired by your father in law as he made a will bequeathing all the property to his wife name and as such after her death if she has died without will your wife and her brothers wife has right on property

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1. In the Will of father of your mother in law, the son was the beneficiary as well as witness? How can that be?

2. The father's estate opened after his demise in 1994.

3. So as per his wishes his property went to the son (assuming the son can be both beneficiary and witness in the Will as per law)

4. So if the property went to the son then he was entitled to make a bequest of the same in favour of his wife

3. Now it seems that wife passed away before the son. In that case the bequest would lapse in absence of beneficiary

4. So after the son's demise, his property will devolve on his legal heirs as per intestate succession ie it will go to his children (mother and wife both being predeceased)

5. If there are no heirs of son in Class 1 then the property may go to your wife provided there are no legal heirs living in higher classes

6. Also you need to check the Will if there is any provision made by son as to what would happen if the legatee predeceased him or whether there is any residuary clause in the Will

7. Whether the son misbehave with his parents or not, that hardly matters. The wishes of the testator as stated in his Will are to be implemented as per directions contained in Will

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Since mother died intestate daughter and son would have equal share in property

2) 50 per cent share of deceased son would devolve on his wife and children

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Incorrect, WILL can be change any time by testator in his life time and all previous Wills get revoked.

Last WILL will prevail.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Last will of the executant will be given effect to as such the last will shall be in force and if the wife of your brother in law disputes the same onus lies on her to prove that the will was made by fraud or coercion. Any witness who has affixed his signature in the will can depose before court.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Second will revokes the earlier will

The earlier will is no longer in force

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

No the lawyer is absolutely wrong according to law itself the will can be changed any time in life . Further on making new will the previous all wills are revoked.Even there is no such statement the first will is not valid and second is in force.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

The grandfather's Will can be changed only by the grandfather and no one else

Second Will is made by son. In that he gives the property which he inherited under his father's Will to his wife

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Yes he has the right in the property since a subsequent will was made and the property was named in the name of the wife, who intern passed away without the will and as such after her death the property will be divided among her legal heirs as per the Hindu succession act.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Lack of statement in first will does not ipso facto makes the second will illegal.

Share the copy of the will for a concrete advise.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Yes, your wife is entitled to inherit half of the self acquired property left by the father of your MIL.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Not mentioning so, will not render the second will bad.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

There is no legal bar for beneficiary being a witness to the will

2) father is at liberty to execute another will without consent of beneficiary

2) it is necessary to peruse both wils to advice further

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

1. Since your mother in law died intestate, her properties will be equally inherited by her legal heirs being son and daughter.

2. So, your wife being one of the two legal heirs of your mother in law will equally inherit the properties of your said mother in law.

3. Since the brother of your wife has demised intestate, his share of your mother in law's property will be equally inherited by his legal heirs being his wife and two married daughters.

4. Your wife shall have to file a partition suit before the Court claiming her share of her deceased mother's property.

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

1. If there are two wills, the will executed on the subsequent date will be considered as the latest and valid.

2. The will executed earlier will automatically be considered as cancelled when the another will is executed on a later date for which it is not required to me mentioned in the first will that it can be changed.

3. A will can be changed/cancelled by its executor any time and in that case his last will shall be considered as valid as per law.

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

1. It can be considered as gift deed at all since deed is different from will. Will need not be registered whereas Gift Deed is required to be registered by paying the required stamp duty. So, the said will executed earlier can not be considered as a gift deed.

2. Whether the first will is defective or proper it looses its ability to be enforced and validity as soon as the last will is executed.

3. The second will is the only document based on which the share of the property can be claimed by your wife..

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

Ok so i guess i misunderstood the query

The first Will in favour of son stands superseded by the second Will in favour of wife

So son was excluded from the property

Testator passed away in 1994. The legatee wife was living at the time of death of her husband.

So the property will devolve on her as beneficiary named in the Will

Subsequently legatee wife passed away in 2010 without making any Will

Therefore the property will go to her legal heirs as per intestate law

The beneficiaries will be her two children

As son has passed away his half share will go to his widow and daughter

Your wife will take half share in the property

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

As correctly pointed out he cannot be witness and beneficiary independent witness are required even though when there is fresh will after the old there is no question that the previous is valid. Further it won't be a gift deed as gift deed firstly require registration and require possession and acceptation at time.of signing not after death.

And father donot need any permission from beneficiaries to cancel the will . He on his own accord can make new will that will superced the previous will.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Here Revocation of WILL can be done by the testator any time in his life. Please read below points.

Revocation of ‘Wills’: A Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will. A Will can be revoked by testator of the Will at any point of time which can be classified into two aspects such as:-

• Voluntary Revocation: A testator who wishes to revoke his original Will which is made by him on a specified date and time, he can make revocation of the will himself by writing a subsequent Will or codicil duly executed and by destruction of the previous will, means by burning, tearing, destroying or striking out the signature of the original instrument of a Will.

• Involuntary Revocation: According to the Section: 69 of the Indian Succession Act, 1925 which deals with revocation of will by the testator’s marriage, however this provision does not apply to Hindus. Section 57 of the Indian Succession Act clearly states that a testator’s marriage will not make the Will invalid.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

So here both the daughter and grand daughter has rights in the property 50-50% share of the parents equal share.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Your wife's mother was a legal heir to her deceased mother.

Even though the she might not have enforced the will during her lifetime, she becomes the owner of the property as per the Will bequest made in her favor by her deceased husband.

Thus upon the intestate death of the said beneficiary i.e., the mother of your mother in law, her property shall devolve equally on her own legal heirs i.e., her daughter and son .

Now upon her death (i.e., your mother in law), who is reported to have died intestate, her share of proeprty shall devolve equally on her own legal heirs, i.e,. your father in law (if living) and her children.

Since your wife is one among the legal heirs of her deceased mother, she is entitled to a legitimate share out of her mother's share in the property.

If she is denied her share by the cosharers for any reason, she may file a partition suit and claim her rightful share with separate possession.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

The Grandfather F, had not mentioned in the first will that he can change the will at any point of time at his sole descretion. As per a local lawyer we consulted, lack of this statement in the first will makes the second will useless. Is this correct?

It is not necessary to make any such mention in the original will.

Any will subsequently made shall overtake the previous will and the previous will shall be cancelled or revoked automatically upon a new Will being made by the testator.

The lawyer may be incorrect in this statement, you may consult a different lawyer to know more details in person.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

Important point made by Mr Yusuf Rampurawala(he is the only lawyer here with a different opinion): How can the son be the beneficiary and witness at the same time? (As mentioned earlier the son of the grandfather was a signatory in the original will/ gift deed).In which case is the first will not a will but rather a gift deed? If so can the father cancel it by making the second will without consent of beneficiary?@ Mr Yusuf: The second will is also made by the grandfather(owner of property) and not by the beneficiary son.

It is a very valid point that has been observed by our learned and expert advocate Mr. Rampurwala.

He has rightly opined that the beneficiary of the Will cannot be an attesting witness to the same will.

Since there is no mention about gift deed, and even if it was a gift deed, the donee cannot be a witness to the gift deed, hence assuming that it was a gift deed, then also it is invalid in law.

Therefore there is no legal infirmity in cancelling the invalid will or gift deed.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

1. Subsequent will is an automatic revocation of the previous will.

2. In the subsequent will made by him he bequeathed his property to his wife. Now if the wife (beneficiary) passed away intestate i.e without making a will then her property devolved through intestate succession on her heirs i.e husband and children.

3. Since the son passed away his share in the property of his mother devolved further on his widow and married daughter.

4. Your wife surely has a share in the property of her mother, which she can cull out by filing a suit for partition in the civil court.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

1. Testator does not have to mention in his will that he can revoke it at anytime, A will comes into operation only after the lifetime of the testator. During his lifetime the testator remains the undisputed owner of the property for which he has made the bequest, hence the right to revoke the existing bequest is inherent in the testator.

2. You have been wrongly advised by the local lawyer.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

1. With due deference to Mr.Rampurwala, I disagree with him. The original will made by father was subsequently revoked by him. So the fact that son was a witness in that will did not oust him from succeeding intestate to the property of his mother who became the owner on the revocation of the first will and on the demise of her husband.

2. Even otherwise, by no method of legal interpretation the attesting witness to a will is excluded from intestate succession to the property whose bequest he signed as an attesting witness.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

It cannot be taken as gift deed until not specifically mention of it and execution of WILL can be proved by single witness in court but beneficiery and witness being same person , it's void.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

This is my response to you:

1. The first Will is bogus;

2. This is because the witness has to be someone other than a family member;

3. The first Will cannot be a gift deed because it does not fit in the format of a gift deed;

4. Therefore all the options are open and all the surviving legal heirs have a claim on the property.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Hi,

The second and next will can be changed at any time. But, from your question it is not clear whether first document is a will or gift deed. All the things depend on it.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

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