As per the will you have no share in father property
2) on mother demise your brother is at liberty to sell the property
3) I presume will is attested by 2 witnesses
4) will does not require registration
Daughters rights of share
Hi this is usha. I have a elder sister and a elder brother, all of us are married. My parents are both deceased father in 2015 and mother in 2016. my father has done a will without registering or notarizing it. My father had a house built in good locality and now it is worth some crores. my brother is planning to sell it. In his unregistered will my father he had stated that my brother can live in that house and enjoy but cannot sell it till our mother is alive. but the house is very old, and my mother also is dead now my brother wants to sell it which is still in my fathers name only. my brother wants to change the name of the property to his name first and sell. what should be the daughters claim on this should the property be in name of all three of us before selling. when the property has to be sold what is the right of the daughters, what share is legally accordingly in it as our father has not told anything in his will if it is sold after my mothers death. please advice LEGALITY OF WILL BELOW EXTRACT OF WILL ( THE WILL IS UNREGISTERED AND WRITTEN ON PLAIN PAPER WITH TWO WITNESS SIGNATURE , ADDRESS) 1. SRI ..A..........SON OF ..........B AGED ... ...yrs RESIDING IN........... HEREBY declare this to by my last wil and testament. I hereby revoke and cacel all former wills and other testamntary dispositions whatsoever made by me and declare this to be my last will and testament. 2. I hereby appoint my son.....C......to be the execueor and the trustte to this will and testament. After my passing away, he shall take custody of all movable and immovable effects that may be left behind me, file the appropriate returns with the tax authorities, and get the estate cleared from the tax and other liabilities and deal with the net estate as stipulated hereafter. 3. I stipulate the beneficiaries of this will are: Smt. B (my mother) as she is my wife Sri. C (brother) as he is my son Sri D (sister) as she is my daughter and me. as she is my daughter 4. All my assets are out of my own earnings and are at my disposal, absolutely and i proceed to make the following disposition thereof to take effect after my death. 5. In the event my wife predeceases me a sum of 50,000 shall be given to both my daughters and all the residue of my assets shall go to my son, ....C..... absolutely as he residuary legatee. In the event if I.....A.... predecease my wife, the assets will be distributed as stated in paragraph 5, above with the express condition that all income arising out of the assets so distributed (net of tax will be made over to my wife during her lifetime. it is my desire that deposits be made in joint name my wife being joint holder in all case and the house property my wife will have the right to reside therein during her lifetime and my son will not have the right to either sell or encumber the property in anyway during this period. date.......... SIGNATURE NOTE: FATHER WAS FIRST DECEASED NEXT MOTHER
Asked 5 years ago in Property Law
Religion: Hindu
12 Answers
See firstly upon the legality of the will , it is not mandatory to register a will in case there is unregistered written will and there are witness attesting same then will can be deemed valid. Your brother can file for probate of the will and can get order on same.
See you can challange the validity of will in probate or before that you can file for a partition suit before the court but in case the validity of will is proved then in that case your claim shall not be maintainable.
Where is para 5 ??
As per my understanding, after mother death, sale proceeding and other assets shall be distribute by 1/3rd each.
1. Registration or notarization of a WILL is only optional and not a must. Even on a plain paper a WILL can be executed but has to be signed by 2 witnesses.
2. As per your father's WILL, 2 daughters have to be given Rs. 50000/- each by their brother, after the death of their parents and the remaining entire property vests with the brother.
3. In case if your father had died intestate ( without executing the WILL), then the property would have devolved equally to your mother (since deceased, but was alive during your father's death), 2 daughters and 1 son in the ratio of 1/4th each.
4. The daughters can settle this matter with their brother, amicably with everyone's'interest protected, by executing a Family Settlement Deed amongst daughters and a brother.
5. If the daughters think that the WILL which was executed by your deceased father was under duress, unsound mind, threat, force or coercion, then the WILL executed by your deceased father can be challenged in a court of law.
combined reading of clause 5 and the para after it, shows that your father intended that his son take the entire property but without any right of sale or mortgage till the time your mother was alive
legally a Will is not required to be notorised or registered
so if the Will is genuine will of your father then if your brother is relying on the same, he will first have to prove it in court by filing a probate petition
if he succeeds in getting a probate grant in his favour then he can transfer the property to his name and then sell the property
however if there is any objection against the grant, say from you or your sister, then the petition gets converted to suit which will be decided by court accordingly
even if the brother approaches the authority for transfer, he will be required to submit your and your sister's NOC
if such NOCs are not given then he will have no option but to file probate petition and prove the Will
so you need not worry till then
At the property is self acquired property of your father and give mother is already deceased Even if the will is not registered unprobated it can be probated and any claim by the sisters may not be entertained by the court because they have to prove in the court that there is no wheel from the father how are there is a will which is a period and the probat is possible in the court.
Dear Madam,
You should deny the execution of such Will and file a partition suit. It is not a strong document as it is not registered. Proving it is very difficult. Consult a senior advocate with civil experience and proceed immediately.
Section 68 in The Indian Evidence Act, 1872
- Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]
Suspicious circumstances-
As mentioned above that in proof of execution of will, a very heavy burden lies on the propounder to prove the due execution of will and to remove any suspicious circumstances surrounding the execution of particular will in question. Over the period of time judicial pronouncements provide a detail list of these suspicious circumsnatcs, not exhaustive though. These suspicious circumstances are:
- The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
- The condition of the testator's mind may be very feeble and debilitated at the relevant time.
iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
- The dispositions may not appear to be the result of the testator's free will and mind.
- The propounder takes a prominent part in the execution of the Will.
- The testator used to sign blank papers.
vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts.
Other infirmities-
Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. In such circumstances “the test of the satisfaction of judicial conscience” becomes essential. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence.
As per law is concern it is very clear that will would be valid even if it is hand written but same should be signed by atleast 2 witnesses and should also bear the certificate of the doctor stating physical n mental fitness of person who executing it.
an executor cannot sell a house before probate they can only sell it during probate, OR the beneficiaries can sell a house after probate has wrapped up. Keep in mind that a house cannot be sold until the court appoints an executoror probate is completed or until after probate has finished.
The beneficiaries of the will were 5 people. Your mother died and now all the movable and immovable property belongs to the siblings and they have been mentioned in the will. Therefore your brother is a trustee and hence can only sell the property after your mother's death but as you 2 are also the beneficiaries of the will your consent is also required as you too have a share in it.
Regards
Since d will has been under two witness it is valid & does not require notary & registration. As per d extract in para 5 your father has willed both d daughters an amt of Rs.50000 which is d final amt to be received by each of u. But u can challenge d will on d grounds of undue influence .
The Will left behind by your father is clear, i.e., he has properly transferred his properties by a testamentary disposition.
Accordingly the daughters are entitled to only Rs. 50,000 each and the son is entitled to all other properties including the house property.
Therefore he can sell the properties after transferring them to his name.
Since it is an unregistered Will, you can challenge the same in the court of law by filing a partition suit, though legally speaking you may not be entitled beyond what was allotted to you.
As per the present will there no express clause as to what will happen to the property if both are deceased. Your brother can't sell the house till your mother was alive but now she is not alive. So in this case you all are legal heirs of the house. It will have to be your consent too for selling the same. He can't mutuate it in his own name. You can get an injunction if he still proceed to sell. You all sisters can claim your share in the property.
