Dear Sir, We are three brothers and have 3 properties. 1. House ( Registered on my name and fathers name) 2. House ( Ancestral property on my fathers name which he received from grandparents) 3. Shop (Registered on my fathers name) My father passed away in 2004 without any will, my mother passed away in 2018, my 2 brothers now have filed a partition suit in court where one of my brother has submitted a registered will showing that my mother has put everything on her name to his name. The will does not have any details of the share of above properties mentioned except the name and location of the properties. I am not sure when this will was prepared and got registered. Can you pls guide if i can challenge that will in court of law, how can a will be registered when the property was not even partitioned, how can my mother be able to give her share like this in a will. Regards
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On father demise mother had one fourth share in properties standing in deceased father name
2) mother was at liberty to execute will for her share in property
3) I presume your mother was mentally fit at time of execution of will and it is attested by 2 witnesses
4) you are at liberty to challenge the will if there are suspicious circumstances surrounding the will
Thanks @Ajay sir, my mother was not very much educated, she was just 6th class pass and did i am assuming was taken into false promising and didn't knew what she was signing for, the will does not even mentioned that she has three sons, just the name of one son is mentioned that is all it contains.
There are suspicious circumstances surrounding the will
the fact that will does not mention that mother had 3 sons is suspicious circumstances .
take the plea that will was executed under undue influence of one son to deprive other siblings of their share in property .
they mother was not much educated and not aware that she was depriving her other 2 sons of their share in property
no reasons were mentioned to deprive other children their share in property
the sibling who is relying on the Will to contest the partition suit, has to prove that Will as per law
he has to prove that the Will was signed by the mother voluntarily and out of her free will and volition and knowing fully well what she was doing by signing the Will
the Will has to be attested by atleast 2 witnesses who also have to put their signatures on the Will
registration of the Will per se does not dispense with the requirement of proving the Will as above nor does registration grant any credence to the Will and its authenticity. In fact under the law a Will is not even required to be registered
it is ok for your mother to make a bequest of her share in the property which she would receive in future
it is not necessary that on the date of making the Will the maker of the Will has to be owner or holder of the property or share in it, which is the subject matter of the bequest
Intestate Succession: Since your father passed away without leaving a will, his properties, including the ancestral house and the shop, would be inherited by his legal heirs as per the Hindu Succession Act, 1956. The legal heirs in the case of a Hindu male dying intestate are his widow (your mother) and children (you and your brothers). The properties would be divided equally among the widow and the children.
Ancestral Property: Ancestral property has a specific definition under Hindu law. It refers to property that is inherited up to four generations of male lineage, and all male descendants in those generations have an equal right to it. If the second house is genuinely ancestral property, your father would have been a co-owner with his brothers, and upon his passing, his share would devolve upon his legal heirs, including his widow and children.
Will and Partition: If your mother made a will where she purportedly transferred all the properties solely to one of your brothers, this action could potentially be challenged in court. The legality of the will and its validity would be subject to examination. Under Hindu law, a person has the right to bequeath their self-acquired property through a will, but the same principles do not apply to ancestral property. Ancestral property devolves through intestate succession and not through a will.
Challenging the Will: To challenge the validity of the will, you may need to present evidence or raise objections on various grounds, such as the authenticity of the will, the mental capacity of your mother when making the will, coercion, undue influence, or fraud. Additionally, if the properties are indeed ancestral, the will's claim to transfer them exclusively to one brother may be legally untenable.
Your mother can very bequeath her undivided share in the property in the capacity of one of the legal heirs to your deceased father and can transfer her share in the properties to one of the chosen children through a Will.
The court will consider her share alone to be transferred to the named beneficiary while partitioning the properties among the legal heirs.
If the Will was signed by her and duly attested by two witnesses as well since the Will has been executed by a registered document, it is very much valid in the eyes of law.
- As per law, after getting the share in the ancestral property , it will considered as self acquired property of your father.
- Further, Since your mother has died after the death of your father , then the property of your father would be devolved upon your mother and three sons.
- Further , being a claimant of the 1/4 share in the property , she was having her right to transfer her said undivided share to her said son without taking others consent .
- However, the registration of a Will is not mandatory , it can be valid when it is probated from the court.
- Since, the said Will is not probated , then you can challenge the geniuses of the said Will
- You can claim equal right over all the properties left by your father , including half share in the joint property with you.
She can only give her undivided share in will she can’t givc any more. If it’s more than her undivided share then you can challenge the will
Dear Client,
According to the law, once you receive a share in the ancestral property, it is considered as self-acquired property of your father. In this case, your mother passed away after your father, and as a result, your father's property would be distributed among your mother and three sons.
As a claimant of a 1/4 share in the property, your mother had the right to transfer her undivided share to one of her sons without obtaining consent from the others. It is important to note that the registration of a Will is not mandatory; it can still be valid if it is probated by the court.
However, since the Will in question has not been probated, you have the option to challenge its legitimacy. By doing so, you can claim an equal right over all the properties left by your father, including a half share in the joint property that you held with him.
You can challenge the WILL.
