• Will under challenge and probate once refused, pending in court

1. A flat was allotted in a housing society to deceased husband of widow in 1990 by DDA in Rohini Delhi. Is this covered under current rule of delhi government to view all allotments as joint with spouse? Since when it is effective in Delhi?

2. Can executor or beneficiary prevent widow from entering and residing in her matrimonial home as mentioned above while will stands challenged in a local court and probate is still not granted ( Actually taken back once by court ordering trial for probate after making widow party)

3. can widow seek residence order under PWDVA 2005
Asked 1 year ago in Property Law from New Delhi, Delhi
Religion: Hindu
Since widow is the class- I heir she inherits the flat unless Probate is granted of a Will left by her husband.
In the present circumstances if the widow challenges the Will the Probate is unlikely to be granted and before it is so granted the widow can easily get an order of residence vide PWDV Act. 
Widow can seek relief under the Act against her in law
Devajyoti Barman
Advocate, Kolkata
5179 Answers
54 Consultations
4.9 on 5.0
1) On demise of husband widow would be entitled to stay in her matrimonial home during pendency of probate proceedings 

2) if she has denied right to stay in her matrimonial home she can move court for necessary reliefs 

3) widow can claim residence order in DV case 
Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
1. The query is deficient in providing  required information to enable us to advise properly. No allotment can be made to a deceased person, if the fact of his death is known to the allotter,

2. Who is the executor and beneficiary? Based on what document he has been made the executor and beneficiary?If the flat is legally allotted  in the name of her husband then his wife has legitimate claim on the said property as one of her legal heir,

3.  Yes but she has to file a case as per PWDV Act first against hem who caused domestic violence on her.
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0
Hi sir,  a person having a self acquired property  at that time only that person has to entitled  to make a WILL otherwise no right to make WILL of such person. If such WILL create or fabricated, defective WILL, that WILL can be challenge before the court by filing an cancellation of WILL before the jurisdictional civil court.  
C. V. Jadhav
Advocate, Bangalore
262 Answers
3 Consultations
3.8 on 5.0
1) there are suspicious circumstances surrounding the will  as the will does not mention about his marital status and reasons for disinherit img the wife 

2) on wife challenging the will testamentary petition would be converted into testamentary suit 

3) the executor has to prove that it was the last will and testament of the testator in order to be entitled to probate 
Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
After the death the widow become absolute owner of the flat. If a will arisen the widow can challenge the same before the court. From your query the probation will is not allowed by the court due to the absence of necessary party(widow of the deceased person). So adding the widow as party array no one can act as per will. 

The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case. 
Ajay N S
Advocate, Ernakulam
1910 Answers
19 Consultations
5.0 on 5.0
The widow of the deceased is having a right to a share in the intestate property that belonged to her deceased husband. As far as the Will is concerned, until it is proved that the said property was already bequeathed in favor of the beneficiary and not the widow, then she may have to wait for the court order granting probate of the will by challenging the probate OP. If there is no restriction stay restraining her from entering into the disputed property, on the basis of her claim she can very enter into the property and squat there awaiting court decree to vacate. 
If the widow suspects the will and is properly challenging the will while simultaneously filing a suit to declare the property on her name in he capacity of widow to the deceased owner, she can protest the objector to her entry into the suit property by lodging a police complaint also. 
T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0
1. The property is not joint if it was registered only in favour of the husband.

2. The widow, as a legal heir to her husband, has succeeded to his property. As a corollary thereto, she cannot be restrained from residing in the house of her deceased husband to the extent of her own share therein.

3. The will is clouded in suspicion if it is silent on the marital status of the children. His widow can challenge it in the court which can declare it as illegal. Until such time that a court of law declares the will as illegal the widow cannot reside in the property.

Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
5.0 on 5.0
1.First get a certified copy of the said registered will,

2. See who have signed as witnesses in the said will to verify if they were independent persons or men of the legatee,

3. In the instant case the marriage was solemnised in the year 1991 when the allotment was made to the bachelor in the year 1990,

4. Find out from DDA whether the DDA specific rule of joint allotment to spouse is applicable even if marriage takes place after allotment or not,

5. She should lodge a police complaint if after inspection it is found that her husband's signature has been forged while executing the will,

6. If the signature is found to be genuine, challenge the will alleging coercion. 
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Property Lawyers

T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5179 Answers
54 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
433 Answers
15 Consultations
4.7 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2731 Answers
41 Consultations
4.9 on 5.0
Ajay N S
Advocate, Ernakulam
1910 Answers
19 Consultations
5.0 on 5.0
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0