My uncle has two wives. one son and two daughters for first wife,after her death he got second marriage 2 sons and 2 daughters for them. my uncle does not like to give any property or shares to the first wife children.so the first wife children were filed a suit against my uncle,after filed the case my uncle had execute a will in the name of last son of his second wife. 2 years later he died. all the properties were self acquired by my uncle. i want to know, after filing a suit against him can he write a will on his own desire and,is there any rights to claim shares to his first wife children.
Asked in Property Law from Chennai, Tamil Nadu
kindly send your legal opinion as early as possible
Asked 1 year ago
1) uncle can make will in respect of his self acquired properties even after filing of suit
2) youngest son should apply for probate of will
3) first wife children will not have any share if will executed by uncle and attested by 2 witnesses
1. If the property belong to the uncle acquired on hos own then he can execute a will even after filing of suit.
2. His wife and children should have asked for injunction in the said suit. If injunction was passed ir is indeed passed then the property can not be bequeathed by Will.
3. Moreover they should sought for maintenance form him.
Now clarify the nature of the suit.
1. Your uncle was at liberty to decide as to who will inherit his properties after his lifetime. He was well within his right to refuse a share to the children born out of his first wedlock.
2. What was the outcome of the suit filed against him?
3. Mere filing of the suit, unless followed by a stay order issued by the court, did not prevent your uncle from making a will.
You have stated that the properties were your uncle's self acquired property, it means he has full rights over the same to transact with it in any manner or to dispose it by any ode in favor of anyone of is choice including an unrelated third person.
The above being the position of law, there is no legal infirmity by executing a Will deed by your deceased uncle in favor of his last son alone who was born out of his second marriage.
First of all the sons of the first wife do not have any rights to claim a share out of their father father's self acquired property and the so called suit is not maintainable, so there is no restrictions on the decision of your uncle bequeathing his property to the beneficiary through the Will.
1. Since it was the self acquired property of your uncle, he had all and every right to dispose off the property in whatever manner he wanted to.
2. Just because his first wife's children had filed a suit against him does not take away your uncle's freedom to dispose off his self acquired property in whatever manner including execution of 'WILL' bequeathing the property in favour of last son of his second wife.
3. Whether the execution of 'WILL' was under duress, coercion, threat, inducement has to be looked into and the first wife's children can challenge the 'WILL' in court, if they feel that the 'WILL' was not voluntarily executed by your uncle but due to force of threat, coercion, etc.
A. You uncle is the absolute owner of the property under the self acquired property as clearly clinched by you. Hence, your uncle can execute a will to any person without obtaining consent of the first wife and children.A Will does not involve any transfer, nor affect any transfer inter-vivos, but it is an expression of intending to appoint a person who will look after the properties after his (Testator) death. A Will regulates the succession and provides for succession as declared by the testator.
B. Even Though the suit property has got interim order to not alienate the property under the interim application that your uncle can execute a will because it is not amounts to transfer. Therefore, after the filing the suit that the party of the suit can make a will in respect of self acquired property. However, you can challenge the same if property is ancestral.