• Property and will

My mother made a will and given property to two brothers in equal share after selling previse property and invested in new property .
property & will registered in mothers name. mother expired.
Do sisters have any claim on property.
do we need their approval.
Asked 3 months ago in Property Law
Religion: Hindu

6 answers received in 1 hour.

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21 Answers

If your mother has made a will then only the persons named in the will have a share and nobody else.

Sisters will not get a share.

Rahul Mishra
Advocate, Lucknow
13048 Answers
42 Consultations

5.0 on 5.0

Apply for probate of deceased mother will 

 

2) probate is judicial proof that will is genuine 

 

3) enclose mother death certificate and affidavit of one of attesting witnesses 

 

4) apply for mutation of property in meme of beneficiaries of will 

 

 

5) your sisters can object to mutation and probate of will 

 

6) you have to prove mother executed will by testimony of attesting witnesses 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

Act as mentioned herein above 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

Yes file for probate and the sisters do not have a share.

Rahul Mishra
Advocate, Lucknow
13048 Answers
42 Consultations

5.0 on 5.0

- As per law , if the property is self acquired , then the owner having right to transfer said property as per his /her own wish , and none having right to claim.

- But, this not applied in case the property came from her husband and ancestral 

- Since, there is already WILL written by deceased mother , then sister cannot claim her right over the same. 

- However , if sisters claiming share , then the beneficiary should probate the WILL from the court. 

Mohammed Shahzad
Advocate, Delhi
7982 Answers
85 Consultations

5.0 on 5.0

Dear Sir/Madam,

1. No since the will does not include sisters name, sisters do not have right over property. 

2. No, their approval in this case is not needed

3. Although the probate of the will is not mandatory in all other cases, it is advisable to obtain probate in cases where there is a probability of the validity of the will being challenged on any grounds in the future.

Thank you

God bless

Anik Miu
Advocate, Bangalore
2499 Answers
26 Consultations

4.9 on 5.0

If it was your mother's own and absolute property and she had transferred the same thorough a Will to her sons alone excluding the daughters, the daughters cannot challenge the Will nor can claim any share in the property as a right.

 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

Probate of will is not mandatory in other cities other than the presidency towns namely Chennai, Mumbai and Kolkata.

However for enforcing the Will by applying for mutation of records, the revenue department may insist on NOC from other legal heirs of the deceased mother.

If not then you may have to obtain grant of probate of Will to get the property records transferred to the names of the beneficiary of the Will.

 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

1. If she has made a will and excluded sisters from succession then sisters have no right, title or interest in the property. So their consent is not required.

2. Probate is mandatory only in presidency towns.

Ashish Davessar
Advocate, Jaipur
30745 Answers
913 Consultations

5.0 on 5.0

Daughters have no right as they are excluded by the mother's Will

 

Yusuf Rampurawala
Advocate, Mumbai
6435 Answers
54 Consultations

5.0 on 5.0

A Will is a legal declaration of the intention of a person (testator) with respect to his property or estate, which he desires to take effect after his death. 'Probate' means the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator. A probate can be granted only to the executor appointed under the Will.

 

For seeking a Probate, the executor of the Will, as a Petitioner is required to file the petition (after making payment of applicable court fees depending upon the value of the assets) before the competent court through an advocate. Thereafter, the court usually asks the Petitioner to establish the proof of death of the testator, as well as proof that the Will has been validly executed by the testator, and that it is the last Will and testament of the deceased. After receiving the petition for a Probate, the court issues a notice to the next of kin of the deceased to file objections, if any, to the granting of the probate and it also directs the publication of a citation on board to notify the general public. If there is no objection, on the other hand, if the next of kin of the deceased files their respective consent to the grant of Probate, then court grants the Probate, however, if the next of kin of the deceased files their respective objections to the grant of Probate, then the Probate Petition becomes the testamentary suit, to enable parties to lead evidence in the matter.

 

In your case the will come into existence after the death of your mother. The property distribution can do only according to the will itself. Even though the sisters can challenge the will . Honorable Supreme Court held when there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine.

Ajay N S
Advocate, Ernakulam
3931 Answers
83 Consultations

5.0 on 5.0

Get the WILL approved by the Court of Law. 

Regards 

G.RAJAGANAPATHY 

High Court of Madras

Rajaganapathy Ganesan
Advocate, Chennai
2001 Answers
8 Consultations

4.9 on 5.0

1. The property stood in the name of your deceased mother.

 

2. She can legally execute a will in favour of anybody she feels like without the knowledge and/or consent of her children or anybody else.

Krishna Kishore Ganguly
Advocate, Kolkata
26030 Answers
726 Consultations

5.0 on 5.0

1. Grant of probate is a must for wills executed and properties situated in presidency towns.

 

2.  However, it will be prudent on your part to apply for and avail the grant of probate even if the will/property has not been executed or the properties is not situated at any Presidency Town like Calcutta (Kolkata), Madras (Tamilnadu) and Bombay (Mumbai).

Krishna Kishore Ganguly
Advocate, Kolkata
26030 Answers
726 Consultations

5.0 on 5.0

If sisters object to grant of probate it gets converted into testamentary suit 

 

2) you have to lead evidence to prove will was executed by deceased 

 

3) if you are able to prove will you will get probate of will 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

1. Sisters might challenge the will in the probate case on receipt of the notice from the Court, after the probate application is filed.

 

2. If the witness deposes that your deceased  mother had signed the said will in his presence and the will is technically free from any error/defect, then there is no reason why probate of the will shall not be granted in  favour of the beneficiaries.

Krishna Kishore Ganguly
Advocate, Kolkata
26030 Answers
726 Consultations

5.0 on 5.0

A Will is a transfer of the property by the person who has clear and marketable title to the property he desires to bequeath to the beneficiary for the reasons he has stated in the Will.

In fact it is a transfer of property by a  testamentary disposition by the testator in favor of the beneficiary.

The other legal heirs are impleaded as a party to probate case just because the court wants to confirm that if the Will was made fraudulently or by coercion based on the valid objections of the respondents.

The court has no doubt about the transfer of proeprty made through this Will.

Will is the legal declaration of a person's intention, which he/ she wishes to be performed after his/her death.

Probate is defined under the Indian Succession Act, 1925 as – “A copy of will certified under the seal of the court of competent jurisdiction with a grant of administration of the estate of the testator”

Necessity of a Probate in certain cases: As per the provisions of the Indian Succession Act, 1925 ("Succession Act") the provisions of testamentary succession are applicable to the Will if:

(i) Made by Hindu, Buddhist, Sikh or Jain on or after the first day of September, 1870, within the territories which at the date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay or

(ii) Made the Will outside those territories and limits, so far as relates to immovable property situate within those territories or limits.

Further, no right as an executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted Probate of the Will under which the right is claimed. However, this provision applies only to the cases, which are referred above. Therefore, a Probate of Will is compulsorily required, only if the Will is made in any one of the aforesaid two cases, otherwise, it is not compulsorily to Probate the Will.

If you are the beneficiary of the Will and if the Will has been proved before court as valid, then the claim made by the sisters  for a share in the property is not maintainable and any case filed by them in this regard will be dismissed. 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

After the death of a person, his property devolves in two ways:
(i) According to the respective laws of the land when no Will is made – i.e. intestate
(ii) By way of Will – i.e. testamentary

As per the recitals in the will you and your brother become the owners. If sisters want to share in the property then it is their duty to challenge the will.Proving of will is important .

Signature of the testator and attestation of two or more witnesses is very important on the Will.

  1. The testator shall sign or shall affix his mark to the Will, or some other person shall sign it inhis presence and by his direction.
  2. The signature or the mark of the testator or the signature of the person signing shall appear clearly and should be legible. It should appear in the manner that is appropriate and makes the Will legal. It should be dated.
  3. The Will must be initialed by the testator at the end of every page and next to any correction and alteration.
  4. The Will shall be attested by two or more witnesses, each of whom has seen the testator signor affix his mark to the Will or has seen other person sign the will, in the presence and by thedirection of the testator, or has received from the testator.
  5. Each of the witnesses shall sign the Will in the presence of the testator.
  6. The attesting witness or his/her spouse must not be beneficiary otherwise Will in their favour will be invalid (Section 67 of Indian Succession Act 1925).

If you are fail to prove the will then the will has no value and the property divided as per Hindu succession act.

Ajay N S
Advocate, Ernakulam
3931 Answers
83 Consultations

5.0 on 5.0

1. If they ask for their share then let them know that they do not have a share.

2. If they go to court then you will have to bank on the will, to prove which you will have to produce at least one attesting witness in the court/

Ashish Davessar
Advocate, Jaipur
30745 Answers
913 Consultations

5.0 on 5.0

Dear Sir,

1. No in case of a will that has already been made, sisters cannot ask for their share while applying probate. Probate simply means certifying a will and does not mean making alterations to the will

2. Yes, you will win the case as a VALID WILL CANNOT BE CONTESTED.

3. In case sisters refuse, then please approach the Court for an injunction order from the sisters claiming property under the will

Thank you

God Bless

Anik Miu
Advocate, Bangalore
2499 Answers
26 Consultations

4.9 on 5.0

- Since, the said WILL in the name of brothers , then sister cannot claim any right 

- Further, the beneficiary of only last WILL of mother can claim right over the property , and if sister having second WILL , then she can challenge the first WILL .

- For probate two attesting witnesses are necessary and sister no objection not needed in the court. 

Mohammed Shahzad
Advocate, Delhi
7982 Answers
85 Consultations

5.0 on 5.0

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