• Cancellation of will

My father made an earlier WILL how his house property that is in New Delhi be divided after his death. He owned the house in new Delhi through his own earnings. Subsequently, he cancelled that original WILL on a legal stamp paper signed by two witnesses in his presence stating that law of inheritance will prevail for his house property after his death. We are three sisters and one brother (Total four offspring) living. My mother expired in 2019. 
1. Has the old will be considered now as null and void as he cancelled the original WILL?
2. Does it mean now that my father died intestate?
3. How the house property now should be divided among the living One brother and three daughters as his beneficiaries?
4. What is the procedure to follow in New Delhi where the said property is situated?
Asked 3 months ago in Property Law
Religion: Hindu

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35 Answers

Thevold will is no longer effective as a legal document.

The law of inheritance shall prevail.

The property should be divided among All the beneficiaries equally ie 4 parts.

A partition suit should be filed.

Or you may arrive at a settlement and register the settlement agreement before the court.

Rahul Mishra
Advocate, Lucknow
11560 Answers
20 Consultations

5.0 on 5.0

If the WILL is cancelled then after your father the property will get divided equally in four siblings. If you want to prevent any consequences better you can take precaution now to get nominee name updated on property card or performed Mutual Partition between siblings equal sharing ratio as you all fit so and accordingly to that get drafted and registered too with sub-registrar.

Ganesh Kadam
Advocate, Pune
11668 Answers
109 Consultations

4.9 on 5.0

Your father died intestate as earlier will has been revoked 

 

2) on his demise 3 daughters and one son are beneficiaries 

 

3) apply for mutation of property in name of legal heirs 

 

4) enclose father death certificate 

 

5) latest receipt of payment of property taxes 

 

6) if no objections are received mutation would be done in name of legal heirs 

Ajay Sethi
Advocate, Mumbai
79294 Answers
4742 Consultations

5.0 on 5.0

You cna execute POA in favour of family member 

 

it should be attested before Indian consulate 

Ajay Sethi
Advocate, Mumbai
79294 Answers
4742 Consultations

5.0 on 5.0

1. Will after being cancelled has no legal force as if it's not existing at all.

2. Yes.

3. It would be divided among you in undivided equal share. After which you can amicably demarcate your respective share or possession preferably by partition deed.  If there is no consensus then filing partition suit remains an option. 

4. Its same as stated above. 

Devajyoti Barman
Advocate, Kolkata
21680 Answers
311 Consultations

5.0 on 5.0

If the properties are on your father's name and you father himself make application and divided the property and registered all nominees name on property that will be fine.

 

But for Partition deed later on you need to present all of you. As of now just ask you father to sign on application form of nomination along with sharing ratio and in scheduled do mention which side or property placement details get signature all of you.

Ganesh Kadam
Advocate, Pune
11668 Answers
109 Consultations

4.9 on 5.0

Yes it can be done through a POA.

Rahul Mishra
Advocate, Lucknow
11560 Answers
20 Consultations

5.0 on 5.0

1. Yes, the original will is not valid since cancelled.

2. Yes, and the property shall be inherited as per the succession law.

3.  The property shall be equally shared by all the brother and sisters. 

4. The said property can be mutated in favour of all the siblings based on the affidavit and death certificate of father. 

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
111 Consultations

5.0 on 5.0

1. Subsequent declaration on stamp paper signed by two witnesses clearly mentioning that earlier will is revoked would legally mean that Father has cancelled his Will and that on demise of Father, there is no will and will be deemed intestate.

2. By virtue of above, "ALL" the residual legal heirs of Father, will now have EQUAL stake /rights /claims on Father's properties.  In the absence of Father's WILL, Property distribution has to be done via a "Letter of Administration" (LA) obtained from Delhi HC, to enable the property to have Clear Title status for all futuristic legal purposes of Sale /Gift /Transfer /Donate /Mortgage /whatever....   LA authority can be given to any one legal heir by other legal heirs via a POA.

 

CONSIDER THIS:
1. ONLY a proper Stamp Duty paid (500/-) and Registered POA holder is entitled to execute any immovable property transaction before the local registrar of sub-assurances. Online POA Registration facility is not available, as yet. IF the POA is not registered, THEN the whole proceedings shall remain illegal. POA can be given to "ANYBODY", irrespective of relationships. Stamp Duty on POA is not the same as Stamp Duty paid on Sale /Purchase Deed.

2. POA may have strategic clauses and time limitations of the deal (payment terms, validity time period of the POA document ....), for safety of the POA giver.

3. POA can be registered "ANYWHERE" in India, before the local registrar of sub-assurances and shall be valid throughout India. Stamp Duty on POA is not the same as Stamp Duty paid on Sale /Purchase Deed. A Notarized POA is legally infructuous for immovable properties.

4. POA document can be endorsed abroad by the local consulate office and SUBSEQUENTLY stamp duty paid and registered in India, for it to be legally enforceable.

5.  IF person CANNOT go to Registrar office to register POA, THEN Registrar's officer can be requisitioned to visit home, to register POA, on payment of due fees by following due procedure of law.

6. As per a SC judgment, "Immovable Property" CANNOT be sold using a GPA and such GPA and Sale shall remain legally null & void.

Hemant Agarwal
Advocate, Mumbai
5441 Answers
25 Consultations

5.0 on 5.0

Hello,

  1. Yes, the original Will stands cancelled by his making a declaration to that effect later as a Will is subject to any modification or cancellation during the life time of the testator.
  2. Practically, it would mean that your father died intestate as he has referred to in his 'cancellation' of the Will that the law of inheritance would prevail and it goes without saying in the circumstances.
  3. The division has to be in equal proportion among all four of you as you are equally inheritors legally. You may either find a buyer and sell the property and divide the proceeds equally or if any one among you wants to buy the shares of others, enter into an agreement and pay off the others.
  4. As stated above, if you are finding a buyer to dispose of the property either all of you can be party to the sale or provide power of attorney to one among you to enter into transactions, depending on your convenience.

S J Mathew
Advocate, Mumbai
3033 Answers
110 Consultations

5.0 on 5.0

1. In view of your deceased father cancelling the WILL, his death has to be treated as intestate death only.

2. Yes, your father has died intestate.

3.  Due to intestate death of your father and your mother had predeceased him, all the three sisters and a brother, totalling to 4 legal heirs will be entitled to equal right and share in the property.

4.  All the 4 siblings are entitled to 1/4th share each in the property and each one of you can get his/her share individually carved out from the main property. Partition of the property by metes and bounds in favour of 4 legal heirs can be done or if one or two or some of the legal heirs want to relinquish their individual share to the heir/s who want to retain the property, it can be done by executing a registered Release/Relinquishment Deed relinquishing their right over the property. If all the legal heirs want to sell the property, they can do so and distribute the shares equally amongst them.

5.  By producing your parents' death certificates, copy of the property document, family tree or legal heirship certificate, alongwith the prescribed application form has to be submitted in the jurisdictional Corporation/Municipal offices for mutating the property in all your names.

6. Succession Certificate can also be obtained from the competent court.

Shashidhar S. Sastry
Advocate, Bangalore
3236 Answers
175 Consultations

5.0 on 5.0

1. Yes the Will has no value now. The succession act would prevail.

2. If he hadnt had any will then it would have been  called intestate but in  your case also the situation is the same as he has shown his willingness to go by the inheritance.

3. All the properties and his assets( immovable or movable ) shall be divided in to equal parts.

4.  obtain Succession certificates from the court and get the same transferred on equal names through the Sub Registrar 

 

Anyone who is not able to come can give a POA in the name the other sibling or any person, attested by the Consulate of that country.  Physical Appearance not required

 

 

Archit Vasudeva
Advocate, New Delhi
260 Answers
1 Consultation

5.0 on 5.0

Through a registered POA in favour of the sibling/s residing in Delhi, the whole process can be done and there's no need for all the 4 siblings to physically attend to this work at Delhi.

Shashidhar S. Sastry
Advocate, Bangalore
3236 Answers
175 Consultations

5.0 on 5.0

1. the original Will stood revoked by your father

2. his property will now devolve on all his legal heirs equally

3. if your mother died before your father, then his property will go to the children equally

4. if the mother died after your father, then father's property will go wife and children equally and after mother's demise, her 1/5th share will go to her 4 children equally

5. any one legal heir can now obtain a letter of administration by filing a petition in the Delhi High Court. The consent affidavits of the other legal heirs can be attached to the petition. 

6. the consent affidavits of the legal heirs who are presently in different countries can be emailed to them and they can take a print of the same and sign it before the notary public of the country where they are residing and send this signed consent affidavit to the legal heir in Delhi who has lodged the LA petition

Yusuf Rampurawala
Advocate, Mumbai
5757 Answers
35 Consultations

5.0 on 5.0

1. Will executed by your father would be considered as null and void as the same was duly cancelled in the presence of two witnesses.

2. Yes

3. The property would devolve upon the the legal heirs of your father i.e you and your siblings in equal proportion.

4. You or any of your sibling can file a petition for grant of letters of administration in order to inherit the property.

Siddharth Jain
Advocate, New Delhi
5612 Answers
65 Consultations

5.0 on 5.0

Physical presence of all for siblings would not be required. They can give POA if they are unable to appear before the court.

Siddharth Jain
Advocate, New Delhi
5612 Answers
65 Consultations

5.0 on 5.0

- As per law, A WILL can be cancelled or revoked at any time by the testator. 

1. Since, your father has already cancelled the WILL , hence the same is having no value in the eye of law. 

2. Yes, as he has not write any new WILL after cancelling the same , hence he dies intestate .

3. After the demise of your mother , the said property would be devolved upon the brother and three daughters equally. 

4. You all can settle the matter amicably after executing a Settlement deed or Partition deed and registered the same before the Registrar . 

- In case of dispute , any one can file a Partition Suit before the court. 

- If you are unable to present in Delhi for completing the process , then should give a SPA/POA in the name of any relative in India . 

Mohammed Shahzad
Advocate, Delhi
5531 Answers
51 Consultations

5.0 on 5.0

1. Yes.

2. This is what it implies.

3. All 4 get 1/4 share each in this house.

4. Get it mutated in the name of all of 4 legal heirs, on the strength of a legal heirship certificate. 

Vibhanshu Srivastava
Advocate, New Delhi
9126 Answers
179 Consultations

5.0 on 5.0

Hi 

1) Since your father had made a new WILL wherein he has stated that law of inheritance will prevail for his house property, the earlier WILL will stand revoked vide Section 70 of Indian succession Act (the governing act for Wills).

2) So, technically the earlier WILL executed by your father will be construed as revoked and has no legal validity with effect from the date on which the new WILL is made by your father. 

3) No, your father has not died intestate. Since he executed a New Will wherein he has mentioned that the property will be inherited in accordance to law of inheritance, his class I heirs ( 3 sisters, 1 brother ) will inherit the property in equal shares. 

4) All surviving legal heirs ( 3 Sisters and 1 Brother) will inherit the house property in equal shares and if the building is divisible by meets and bounds (i.e physical partition of property is possible), then each one of you can also do physical division of the house property.

5) Where physical division is not possible, interested legal heirs can buy out the share of other legal heirs based on fair market valuation obtained from independent government approved valuer's. 

6) At Delhi, an application for probate of Will has to be made before the court and court will examine one of the witnesses and then validate the WILL. 

7) In general, if all the legal heirs agree that the WILL is genuine, actually there is no need for probate of WILL of through courts. 

8) However probate of WILL will stand in good stead  when the house property is inherited by the children of present legal heirs.

9) In cases of no contest WILLS, courts will fast track the procedure and you can get a judgment and decree within 6 months.

10) If any of the legal heir is living outside of India, then, they can grant special power of attorney to the other legal heirs living in India to complete the process. 

Hope this Information is useful

 

Rajgopalan Sripathi
Advocate, Hyderabad
2051 Answers
374 Consultations

5.0 on 5.0

If he himself cancelled then it will be invalid. 

Yes he died intestate

It will be divided equally. 

You can execute partition or settlement deed of required

Prashant Nayak
Advocate, Mumbai
22417 Answers
49 Consultations

4.4 on 5.0

Will is null.

Yes

All have 1/4th share each - joint ownership.

No specific purpose, maximum you will require to obtain legal heir certificate than on the basis of it, property will transfer in joint ownership of all 4.

Any sibling can do this, others can give POA to him/her.

Yogendra Singh Rajawat
Advocate, Jaipur
21402 Answers
31 Consultations

4.4 on 5.0

DEAR SIR/MADAM,

In the present circumstances, there is no WILL and the property is to be divided among 4 of you as per inheritance law. When in foreign country, you may give SPA (special power of attorney) for the said purpose and the physical presence may be dispensed with.  

Ganesh Singh
Advocate, New Delhi
6512 Answers
13 Consultations

4.5 on 5.0

1. Once your father has cancelled the Will written by him the Will is no more existing.

2. If your father is reported to have died intestate, then the properties left behind by him shall devolve equally  upon all his legal heirs.

3. The properties shall be divided equally among all the children.

4. If all agree for partition, then you can enter into an amicable partition deed to divide the property and take separate possession of each individual's share in the property otherwise you can file a suit for partition before court to seek your legitimate share in the property through court. 

T Kalaiselvan
Advocate, Vellore
69328 Answers
929 Consultations

5.0 on 5.0

All the legal heirs are to be present physically.

However, those who cannot be physically present can execute a POA  deed in favor of any chosen heir.

The power agent can execute the task on behalf of the principal.

T Kalaiselvan
Advocate, Vellore
69328 Answers
929 Consultations

5.0 on 5.0

1. Yes the WILL is null n void.

2. Yes.

3. Property will be divided equally among you four.

4. File Partition Suit. 

This can be done via POA

Rahul Jatain
Advocate, Rohtak
5364 Answers
4 Consultations

4.8 on 5.0

First, Old WILL is cancelled by your father which is not legally valid or it is void. If your father had not executed another WILL. Now, the law of inheritance would be prevailed over it. the House property situated in New Delhi would be divided to all legal heirs including sisters in equal share each. 

For partition, you may file partition suit before the Civil COurts.

 

Ashish Pandey
Advocate, New Delhi
21 Answers

Not rated

You need to be present there.

Swarupananda Neogi
Advocate, Kolkata
2904 Answers
6 Consultations

4.7 on 5.0

1. Had he registered his will?

 

2. However, subsequently your father had executed a Codicil cancelling his earlier will and rewriting the will stating that law of inheritance will prevail for his house property after his death. It means that your father has executed a Codicil cancelling his earlier will bequeathing his house property  his legal heirs as per the law of inheritance.

 

3. It can be mutually partitioned or a partition deed can be filed before the Court praying for partitioning the property by appointing a Court Commissioner.

 

4. Either mutually register a partition deed or sell the property with mutual consent and divide the sale proceeds amongst all the legal heirs. If the partition can no be settled mutually, file the partition suit as suggested above.

Krishna Kishore Ganguly
Advocate, Kolkata
24708 Answers
701 Consultations

5.0 on 5.0

1. Yes, POA can be executed by the legal heirs stationed abroad in favour of anybody staying in India (Delhi).

 

2. The POA shall have to be signed by the executor in presence of the appropriate officer of the local Indian Consulate and set back to India for fixing stamp by the collector for vetting the said POA.

Krishna Kishore Ganguly
Advocate, Kolkata
24708 Answers
701 Consultations

5.0 on 5.0

Testator can cancel his will anytime, once will cancelled then it is not valid... 

if he died without leaving will then property is Intestate. 

equally divided between class1 heirs. 

 

Mohammed Mujeeb
Advocate, Hyderabad
18935 Answers
11 Consultations

4.5 on 5.0

The property can be registered through POA, the power of attorney holder can sign on his/her behalf by producing a copy of the power of attorney to the appropriate authorities. 

Mohammed Mujeeb
Advocate, Hyderabad
18935 Answers
11 Consultations

4.5 on 5.0

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

2. The latter will shall prevail.

3. In terms of his last will the property has devolved on all his children equally.

4. The children are free to divide the property by executing a deed of partition.

5. First apply for mutation and then go for partition deed.

6. If all of you cannot be personally present for mutation then you may execute GPA in favour of one of you to authorise him to apply for mutation on your behalf.

Ashish Davessar
Advocate, Jaipur
29956 Answers
864 Consultations

5.0 on 5.0

1. Old will cannot be considered if cancelled by testator himself.

2. Yes it means your father died intestate.

3. Equal distribution among all legal heirs.

4. First obtain legal heir certificate from tehsildar by giving application along with list of legal heirs and death certificate of your father.

5. Then you can apply for mutation by providing legal heirs certificate of your father.

 

Mohit Kapoor
Advocate, Rohtak
10685 Answers
7 Consultations

5.0 on 5.0

1) Original Will not valid due to its cancellation by your father.

2) Yes.

3) one fourth share each.

4) Issue notice seeking partition of property, if it is not adhered to, need to file suit for partition and separate possession.

S Srinivasa Prasad
Advocate, Hyderabad
2862 Answers
9 Consultations

5.0 on 5.0

No need for physical presence of all.

Yes, they can be represented by POA.

S Srinivasa Prasad
Advocate, Hyderabad
2862 Answers
9 Consultations

5.0 on 5.0

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