My father purchased land out of his own earnings and put it in both my fathers and mothers name. My parents had a joint registered will in 1999 that said the entire property should be inherited by me. My mother passed away in 2000 and my father passed away in 2021. My father wrote a partition deed in 2008 and separated the land into two peices (fathers share and mothers share). Then my mothers portion of the property was divided to 3 pieces (2 sons and fathers 1/3 each) name. My father then wrote a separate will granting "my fathers share (1/3) of my mothers portion" to my brother. Since this land was purchased out of my fathers earnings, can my father claim full rights to the land after my mother passed away, or should my mothers share come directly to me as per her joint will. I understand that my father could change his portion of the joint will during his lifetime. Input is appreciated
Even though there was a Will created by your parents bequeathing their property, subsequently when the partition in respect of the same property took place the Will stands infructuous
Your mother had very clearly divided her share in the property to three of you.
Therefore your father has full rights to transfer his share in the property to anyone of his choice.
Father cannot claim
full share on mother demise
2) mother share would devolve on you as per her will
3) father was at liberty to revoke his will
Father cannot claim
full share on mother demise
2) mother share would devolve on you as per her will
3) father was at liberty to revoke his will
Father cannot claim full share.
Your mother's share will go to anyone, whose name is in the Will.
Advocate T Kalaiselvan replied that my mothers divided the property in three. This is incorrect. My mothers wishes (as per joint will) for this property was for me until she passed away in 2000. In 2008 my father claimed rights on the property and created the partition deed with the help of my brother. thus dividing my mothers share of the property into 3 pieces after her death.
On mother demise her share would devolve on you as per her will
2) father cannot claim full share in mother property .
Yes your father can change his will any time. Your mothers share will your share will be yours if it's her self acquired property
In self acquired property it's the intention and desire of the owner to keep someone in the property or not. If after your mothers death your father has all the powers to sell the same without your consent unless it has not been transferred by your mother during her lifetime
When a person makes a joint Will with another person it is like an agreement between these two persons as to how their estate should be dealt with post their demise
Thus if one testator dies prior to the other testator then the living testator is bound by his agreement and he cannot change the distribution of the estate as directed in the joint Will by making his own Will which is in variance to the directions given in the joint Will, for, by doing so, the living testator would be stultifying the wishes of the deceased testator
So in my view the Joint Will would prevail over the subsequent Will by which the father's 1/3 share in the mother's portion came to be bequeathed to your brother which is not what your mother wished and desired in the joint Will. Thus your father could not have dealt with your mother's 50% share in the way he did and thereby given a complete go by to the wishes of your mother
Yes unless ofcourse the joint Will is disproved by your brother or any other legal heirs or when you fail to prove the joint Will, the father's subsequent Will which is in derogation of the Joint Will would prevail
Thus in my view the entire estate should go to the legatee named in the Joint Will
- As per law, a man can write many WILL during his life time , and the last WILL is only valid , hence as your father has written another WILL then the first one lost its entity.
- Further, after the death of mother intestate , her property would be devolved upon your father and all the legal heirs , and without taking a release deed from you and other legal heirs he cannot write a WILL or execute any deed , except he can transfer his share in the property only.
- Further, the WILL written by your mother is valid.
Dear client,
Your father cannot claim ownership over the entire land even if he has paid for it. He can only change or amend the land over which he has ownership.
Thank you.
Joint will is different from the other wills because it is created and executed by two testators usually a married couple who leave all their property for each other. It means that the testator who dies first, his or her estate would be distributed to the other testator. A will cannot be revoked without the mutual consent of both the testator but when one of the testators dies it can be revoked. The concept of joint will provide that:
In the above context your father has the right to revoke the Will and make a partition deed in respect of your deceased mother's share to all the legal heirs equally.
This is a concept of intestate succession in respect of your deceased mother's share in the property.
In my opinion, there is no legal infirmity by the partition made by your father in the year 2008
1. The title of the said land stood in the name of your father and late mother.
2. Without the declaratory of the Court, your father can not claim the share of your mother on the ground that he had paid the consideration for the purchase of your mother's share of the land.
3. In absence of the said Court order, your mother's will bequeathing her share of the jointly held landed property will be owned by you as per law.
4. However, you shall have to apply for and avail the grant of probate of the said will for want of which the said Will shall not have any value more than a scrap paper.
The said will based on which you can claim your ownership of your mother's share of the said landed property shall have to be probated first.
The joint will was executed and registered in 1999. Your mother passed away on 2000. Her share of the property would as per the will be yours, may be not by metes and bounds but the share would still be yours until the court or you and your family members decide and settle the metes and bounds aspect of it. Therefore, his further actions of partitioning the whole property and also granting 1/3 of your mother's portion based off that partition deed all stand voidable.
