Your sister has one third share in property
2) you cannot dis inherit her
3) you can sell your undivided share in property
4) mother can execute will bequeathing her one third share in property to you
Dispute between heirs and wills issue
Hi, my father died last year. He had no will. As his heirs we are two sisters (married) and our mother. I understand that any properties which are in my father's name should be divided between us three. But we have disputes between us. Me and my mother has very good relationship. But my sister is not talking to me or my mother. She wants her share but does not want to co-operate in any talking. We all are in London at the moment. She has even done so many terrible things to us including filing fake case against us and trying to put us all in jail. Basically she is like witch. 1> Is there any way we can remove her name from inheritance? 2> I know she will not agree to come to India with us to sell anything. That means we can not sell any property without her presence. Is there any way we can sell the property in her absence? I know this does not sound right but I am sure she will not agree with us. She might say she will go alone. If this continues then we will not be able to sell anything anytime. 3> My mother wants to make a will. What is the actual process of making a will which is valid in India? 4> Can she make a will in London and will it be valid in India? Or is it any process to register London's will in India? 5> How can my mother make Indian will and register in India while in London? 6> Any suggestions on how my mother's properties does not go to her in any event? 7> Any suggestions on how we can sell father's property in her absence even if it illegal? We may need to do this because she will not agree with us. If she goes to court then we can settle the case later. Thanks in advance.
Asked 3 years ago in Property Law
Religion: Hindu
8 Answers
Thanks for your reply. 1> How can we sell our undivided share? The buyer would normally want to get possession on 100% purchase. How can someone be ready to by 2/3 of the property and wait for 1/3 later? Is there any legal process we or the buyer needs to follow for buying in 2/3 first and then 1/3? What if she does not agree to sell her 1/3? 2> Can my mother make will in London and will it be valid in India? Or she has to follow Indian rules to register indian will? Thanks.
Asked 3 years ago
You can sell your undivided share in property
2) buyer can file suit for partition for division of property by metes and bounds
3) mother can execute will in London . It should be attested by 2 witnesses
3) registration of will is optional
HELLO I will reply to your questions but answers will depend on the location of property as law sometimes vary a bit with the location.
1> Is there any way we can remove her name from inheritance?
Ans: Legally you cannot but as she will not come to india, if you filed case for probate then you will get the order ex-parte (in her absense). then you can use the property of your share.
2> I know she will not agree to come to India with us to sell anything. That means we can not sell any property without her presence.
Ans: you can sell the property in her absence too. there are many buyers who will buy this property.
Is there any way we can sell the property in her absence?
Ans: yes you can look out for buyers who will not mind buying a property with some issues in cheaper price. they will handle legal issues also.
I know this does not sound right but I am sure she will not agree with us.
She might say she will go alone. If this continues then we will not be able to sell anything anytime.
Ans: as i have told above, you can sell the property in her absence. it will not be very easy but you can engage any person who will find buyer for you.
3> My mother wants to make a will. What is the actual process of making a will which is valid in India?
Ans: your mother can make a will anywhere and get it witnessed by 2-3 persons of repute and get it attested from notary at your place. it will be valid as such in india.4> Can she make a will in London and will it be valid in India? Or is it any process to register London's will in India?
Ans: will can be made anywhere in the world and it will be valid in india. it is not required to be registered. but for caution get it notarized at least.
5> How can my mother make Indian will and register in India while in London?Ans: she can make will there and get it attested. no need to register in india.
6> Any suggestions on how my mother's properties does not go to her in any event?Ans: take relinquishment deed from your mother, and get the property registered in your name after you get the property. as you will sell the property, you will get the money and that can be kept by you or your mother. this will not go to your sister.
7> Any suggestions on how we can sell father's property in her absence even if it illegal? We may need to do this because she will not agree with us. If she goes to court then we can settle the case later.
Ans: sorry we cannot give illegal advice here but as i told earlier, you can sell the property in her absence. if she will not attend the court then only she will lose.
in the end you need to know that you should file a probate case in the city where the property is situated and get the order in your name and then sell the property. if she did not attend the proceedings then she will not be able to handle it later.
1. Unless and until your sister voluntarily executes a Release (Relinquishment) Deed in your or your mother's or in favour of both, she can't be denied her 1/3rd right in your deceased father's property.
2. Your sister can give POA to someone to represent her in the jurisdictional Sub Registrar's Office, to execute the Release Deed.
3. Your mother can execute a WILL on a plain paper at London itself. To be a valid WILL, two witnesses signature is a must. Registration of WILL is optional and not compulsory. Even unregistered WILL will have the same legal validity as that of a registered WILL.
4. If your mother executes a WILL, for her share in the property, in favour of someone other than your sister, then your mother's share in the property does not go to your sister, after your mother's lifetime.
5. If your sister does not agree to sell her share in the property, send a legal notice for partition of the property. If your sister does not respond to the legal notice, file a case in the jurisdictional Civil Court for partition , declaration and separate possession of the property by metes and bounds. By doing this, your sister will approach you for settlement and then the matter can be resolved.
1. Legally she having her right over the property of her father , and her name cannot be removed without her consent.
2. Since that property would be shared amongst three legal heirs , then you two can sell their respective shares after informing her . Send a legal notice to her for the same.
- If she not cooperate , then file a partition suit .
3. Your mother can write a WILL for her share only , and then registered the same from the office of registrar in India.
4. Two attesting witnesses are mandatory for WILL , hence if she will prepare in London , then there may be problem to proof the same in case of disputes
5. She can do the same after executing POA in favour of any relative in India.
6. She can transfer her share in favour of anyone by way of Gift deed
7. Send legal notice to all the legal heirs.
1. Your sister is also one of the legal heirs of your deceased father who is legally entitled to her legitimate share in the property left behind by your deceased father upon his intestate death as successor in interest to succeed to his estates.
Therefore you cannot remove her name from the list of inheritors.
2. You can file a suit for partition and separate possession of your legitimate share in the property.
After court decree, you can very well sell your share in the property.
Her share in the property shall remain as it is.
3. A will or testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution.
She can prepare a Will only in respect of her share in the property and not the entire property.
4. The Will prepared in London can be probated in a court of law in London and then can be enforced in India.
5. She cannot prepare a Will in London, if she wants to prepare a will in India, she has to prepare it in India and get it attested by two witnesses in India.
6. You can file a partition suit and can get her share as a separate possession and then make a registered settlement so that the other party cannot claim any right over it.
7. see the answer at two above.
1. If the buyer is not willing to buy the undivided 2/3 share then you may have to et the property partitioned through court of law and seek separate possession of the 2/3rd share in the property so that you can sell it independently subsequently.
2. The Will prepared in London can be probated in a court of law in London and then can be enforced in India.
She cannot prepare a Will in London, if she wants to prepare a will in India, she has to prepare it in India and get it attested by two witnesses in India.
She can prepare a Will only in respect of her share in the property and not the entire property.
1> Is there any way we can remove her name from inheritance?
NO2> I know she will not agree to come to India with us to sell anything. That means we can not sell any property without her presence. Is there any way we can sell the property in her absence? I know this does not sound right but I am sure she will not agree with us. She might say she will go alone. If this continues then we will not be able to sell anything anytime.
Looks difficult. Though nothing prevents the other co-owners from selling their respective shares, but no buyer would agree since he will want to acquire 100% and get possession. Even if any buyer agrees to buy out the 2/3rd share, he will offer you a discounted price since he wont be getting possession unless the sister holding 1/3rd share also consents.
3> My mother wants to make a will. What is the actual process of making a will which is valid in India?Its quite simple. She can make it on a plain paper. She has to sign that Will in presence of 2 witnesses. The 2 witnesses have to see your mother sign the Will and in turn sign on the Will to attest to the factum of the maker of the Will having duly signed by the Will and that having been witnessed by the witnesses. No notary or any other legal process or stamp paper is required. Your mother must be in a sound state of mind when she makes and signs her Will. A doctor's certificate can be attached to the Will for the said purpose.
4> Can she make a will in London and will it be valid in India? Or is it any process to register London's will in India?Absolutely she can make the Will in London. No need of any registration either in London or in India.
5> How can my mother make Indian will and register in India while in London?
She can make the Will on a plain paper as explained aforesaid. No registration anywhere is required as per law.6> Any suggestions on how my mother's properties does not go to her in any event?
Your mother can in her lifetime either dispose of her properties or gift them to her other relations through a registered gift deed. This will exclude the sister from inheriting any asset left by your mother after her demise.7> Any suggestions on how we can sell father's property in her absence even if it illegal? We may need to do this because she will not agree with us. If she goes to court then we can settle the case later.
you can sell the property on 'as is where is and whatever there is basis'. Selling your and your mother's share will not be illegal. But giving the possession to the buyer who would have purchased only 2/3rd undivided share would be illegal in absence of sale by the sister of her 1/3rd share. You'll can give the possession [if you are in custody of the flat] to the buyer but would have to face a suit from your sister later on.
