• Will by a person

Greetings,

There is one property on my mother in law's name. She passed away few years back. Now the property is under my father in law's name, my 2 sister in laws names and my husband's name. All 4 of them gave the land to builders to construction apartments. My husband and his two sisters live's in abroad. All 3 children gave special power of attorney to my father in law as they couldnt com to india. He wrote a will on my husband's name last year 2021. But it was not not registered. It has two witnesses sign and lawyer's stamp. He passed away last year. My questions are:
1) Is that will valid now without registration and my father in law passed away last year in October and the will was written in June last year? Now we are in India and we want to register all the apartments on our names.
2)Does he has powers to write a will as his children (3) gave him special power of attorney?

Thank You,

Regards,
Krish
Asked 3 years ago in Property Law
Religion: Hindu

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17 Answers

1. Yes if it's genuine then it's valid. 

2. Yes if the property is his self acquired property then he has. 

Prashant Nayak
Advocate, Mumbai
34529 Answers
249 Consultations

Registration of will is optional 

 

2) will is valid as far as father in law share in property is concerned 

 

3) all the apartments cannot be registered in your husband name 

Ajay Sethi
Advocate, Mumbai
99796 Answers
8147 Consultations

 

Thanks for your appreciation 

Ajay Sethi
Advocate, Mumbai
99796 Answers
8147 Consultations

Welcome

Prashant Nayak
Advocate, Mumbai
34529 Answers
249 Consultations

  1. Any unregistered will is as valid as registered will. No registration is required for validity of    The will has to be filed in district Court for transfer of property to persons named in the will. This process is called probating of the will. After filing of the will, the Court will issue notices to all the family members and hear objections if any they have against the will. After that appoint an executor of the Court for execution of will who will transfer and register the property mentioned in the will in favor of beneficiaries of the will. Unless will is probated it is of no use. You have to file the original will in the court and give the names and addresses of all the legal heirs and persons interested. There is fixed fee for probate proceeding which not very high. But you have to bear the expenses of lawyer which  vary from lawyer to lawyer. It will take 3 months for probating will. 
  2. Validity of will depends on what power is given to fil by three legal heirs. If absolute power without any limitations is given to FIL to deal with property as he wants, the will is valid. If limited power is  given for dealing with builder in the matter of construction, then the will can be challenged by other legal heirs.

 

Ravi Shinde
Advocate, Hyderabad
5133 Answers
42 Consultations

Assuming that your father-in-law's Will is genuine, he could have bequeathed only his undivided 25% share to your husband and nothing more. His holding PoA's from your husband and his two sisters shall not entitle your father-in-law to bequeath the entire property in favour of your husband. As such your FIL's Will is legally valid only to that extent. As things stand, your husband is legally entitled to only 50% undivided share. Your two sisters-in-law need to sign and register deeds of relinquishment releasing their respective 25% undivided share each in favour of your husband. Your sisters-in-law need to execute a special PoA in favour a relative or friend in India to sign and register the relinquishment deeds, they being abroad.

Swaminathan Neelakantan
Advocate, Coimbatore
3070 Answers
20 Consultations

Get tge WILL validated by competent court of law to have legal sanction.

G.RAJAGANAPATHY 

High Court of Madras

Rajaganapathy Ganesan
Advocate, Chennai
2300 Answers
8 Consultations

It is not mandatory to register the Will, even the unregistered Will is equally and legally valid, therefore the Will is legally valid even if it was not done by a registered instrument.

However the Will shall be valid to the extent only if the testator has clear and marketable title to the property he may desire to bequeath in favor of the beneficiary. 

Insofar as the transfer of property by a testamentary disposition i.e., a Will, can be done by the testator  only in respect of his share in the property is concerned and cannot transfer other's share in the property even though the other shareholders are his own children or the property remains undivided..

Therefore your father in law is restricted to his share in the property alone hence your husband, as per law, can acquire only your father in law's share in the property.

The Power of attorney deed executed in favor of your father in law by all others will not confer title or ownership on your father ion law for the entire property.

Hence your husband can acquire his father;s share in the property besides his own share.

If at all your husband is desirous to become the owner of the entire property, then his siblings have to execute a registered release deed relinquishing their rights in the property, to enable your husband to become an absolute owner of the entire property with clear and marketable title. 

 

T Kalaiselvan
Advocate, Vellore
89995 Answers
2496 Consultations

You are welcome for your appreciations.

 

T Kalaiselvan
Advocate, Vellore
89995 Answers
2496 Consultations

1. a Will is not required to be registered

2. the father in law can bequeath in his Will only his share in the property. he cannot deal with the shares of his children

Yusuf Rampurawala
Advocate, Mumbai
7900 Answers
79 Consultations

1. Registration of WILL is not compulsory but only optional. Even an unregistered WILL with two witnesses' signatures is considered as valid WILL.

2.  If your father-in-law was authorised by all his children to execute the WILL for the property by giving POA, then the WILL executed by your father-in-law will be valid.

 

Shashidhar S. Sastry
Advocate, Bangalore
5624 Answers
339 Consultations

if your father in law writes a WILL in respect of his share, it would be valid even without registration. if he writes a WILL in respect of the other share-holders relying on the SPA it would not be valid. special power of attorney would not confer Title to him except acting on behalf of principal who executed that.

Sricharan Telaprolu
Advocate, Hyderabad
170 Answers
95 Consultations

Hi, Legally speaking your Father-in-law has no right write a Will. Because it is the property of your Mother-in-law and after her death all the legal heirs have right over the property. Wherefore, your Father-in-law has no right to write a Will. 

Pradeep Bharathipura
Advocate, Bangalore
5625 Answers
339 Consultations

Dear Client,

In India, registration of Wills is not compulsory. A Will is not a compulsorily registerable document under section 17 of the Registration Act, 1908, (Act), and according to section 18 (e) it is the testator’s choice as to whether he wishes to register it.

Thank You.

Anik Miu
Advocate, Bangalore
11018 Answers
125 Consultations

1. It is not mandatory to register a Will.

 

2. One can bequeath his/her property which stands in his/her name only.

 

3. In the instant case he can execute the Will in connection with his share of the property only and the remaining title holders will jointly have title of the said property as legal heirs of their mother.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

1. The POA gets extinguished after the demise of the POA holder.

 

2. Ordinarily, probate is to be taken for a Will and in the instant case all the properties can be equally divided without referring to the Will since the will also says equal distribution.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

1. As per law, registration of a WILL is not mandatory , and it can be written on a paper in the presence of two witnesses. 

-Since, the said WILL was written in the presence of two witnesses , hence it is a valid document 

2. Yes, if said POA  was as per rule , then he was having right to write a WILL for the entire property to them. 

Mohammed Shahzad
Advocate, Delhi
15816 Answers
242 Consultations

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