Probate issued infavour of my one brother 6 years back against the will of my father made in 1997[may be a fake will] and applied by executor for execution in 2009.Came to my notice now while inquiring about Municipal tax and land tax payment of my fathers property and found that name of the holder have been changed on the basis of probate. On going through the copy of the process note of civil court I found that notice to near relatives was served on me on the address of my brother's residence where I am not staying. As a result I did not able to appeared and exparte decision taken by court to issue probate.Notice in a newspaper served which is not a renowned news paper of this area. Value of the property shown 10 times less than actual.The executor of the will is my elder brother who suppressed the fact of will making, execution and release of probate till date to me.He is still saying that fathers property will be distributed among brothers in due time amicably suppressing all above. Please advice about my step.
1) you will have to move court to set aside probate of will granted to your brother on the grounds of non service of notice
2) if your father signature is forged you can contest the will
3) you can examine hand writing expert to prove signature is forged
Fraud was played upon the court in getting probate of this Will.
You can file revocation application in the same court or prefer appeal in high court.
In either case you have good merit for success
1. In such circumstances the recourse which you should adopt is to challenge in the higher court the grant of probate by the lower court. You can carry the matter in appeal right up to the Supreme Court of India.
2. On what basis do you say the will is fake. If you claim it is fake you will have to prove it as such in the court.
3. Your brother was under no legal obligation to inform you about execution of will and grant of probate.
4. As mentioned earlier, your immediate step should be to challenge the grant of probate in a higher court.
immediately challenge the said order granting probate on grounds that this was done beyond your knowledge. You must file an fir to establish your grounds for criminal breach of trust. later use this breach of trust argument to establish your grounds for late challenge. Your appeal is barred by limitation so you will have to plead under section 5 of the limitation act for condonation of such delay.
Also in your prayers you must pray for removal of executor since his role is untrustworthy. If the will itself is completely bogus then it wont be difficult for you to get an order from the appeal court.
1. You have not rceived any notice in connection with he application of probate of your father's will,
2. Legally you can claim that you are not yet aware of the said will,
3. File a partition suit immediately claiming share of your father's property,
4. Your brother will certainly submit before the Court that the said property has been willed by your father for which he has already got the grant of probate,
5. Demand and Collect all the documents including the process note in connection with the said grant of probate,
6. File an application challenging the grant of probate without serving notice on you properly.
