• Will and probate and immovable asset in Tamil Nadu

I am an Australian lawyer with 4 Indian clients (NRI) in Australia.

There is a Will in Tamil Nadu with immovable property (a family home). The deceased died in 1990.
The Will grants a right of residence to one daughter. She lived in the house for some 27 years and has now died. The Will authorizes the house to be sold if the surviving children agree on the death of the daughter with the right of residence.

The executor was the daughter (now deceased) then the husband and then their oldest son. The husband has dementia now.

Probate has not been obtained.

The son claims that a general power of attorney from the children will enable him to sell the property and distribute the proceeds. 

My issues are these:
1. it seems to me that he does not have the authority and the children cannot give him that authority.
2. if I am wrong on (1) how is it that i protect my clients if the grandson does the wrong thing?


Asked 2 years ago in Property Law from Australia
Religion: Other
1) on the basis of the death certificate,  will of the deceased testator application should be made for mutation of house  in the name of the beneficiaries under the will 

2) it would have been advisable to obtain probate of the will . 

3) in madras ( chennai) probate is mandatory . 

4) the children can sell the property .

5) if it is not possible for beneficiaries to come to india specific power of attorney ought to be executed in favour of grand son 

6) it is mandatory to register POA for sale of immovable properties
Ajay Sethi
Advocate, Mumbai
45573 Answers
2677 Consultations

5.0 on 5.0

You are silent on the directions of Will as regards the devolution of title and how amny heris the testator left apart from one son and one daughter whom you have mentioned.

In other words the daughter has mere residential rights only which right ceases to exist with her death. Such right does not devolve upon her heirs.
Now if the Will is silent and the son reamains the other sole heir then he acquires titile in the property in exclusive right.
If there is other co-sharer with him and they all acquires title in equal shares.
Now in the context I am not sure the right of other children due to lack of information. If they have no titile in the property they can not give POA.
If they can give POA in the event they have shares in the property then such POA and subsequent title is valid as far as their respective shares are concerned.
Devajyoti Barman
Advocate, Kolkata
12840 Answers
166 Consultations

5.0 on 5.0

No the general Power of attorney is not enough. The probate needs to be applied for. If the will appoints an executor then the probate must be applied for by the executor. However if such executor dies or is in wrongful conduct of the estate then the beneficiaries of such will can apply to the court to appoint another executor instead.

Currently their is no definite title and hence POA solving all complications is a wrong understanding. The probate proceedings need to be completed. Otherwise such property can become a matter off litigation.

Saptarshi Banerjee
Advocate, Kolkata
220 Answers
4 Consultations

4.5 on 5.0

1. It appears that the will bestows residential right to the deceased daughter of the late executor of the will after the demise of the said daughter all the surviving children shall have the right to sell off h property,

2. It has not been mentioned in the query as to in what proportion the sale proceed has been willed to be distributed. Will it be shared equally? 

3. However, your client has two options as given below:

a) Either apply for and avail grant of probate as per the will , Or

b) Do not rake up the issue of the will since it will be a time consuming affair to get the rant of probate and get the property equally partitioned/settled  amongst all the surviving children/legal heirs and get the property sold and proceeds equally divided. For making such sale all the legal heurs should sign the sale deed or execxute POA in favour of any one who will sign the sale deed for and on behalf of others.

4. Ask your client to file a partition suit o safe guard his share in he property.

Krishna Kishore Ganguly
Advocate, Kolkata
18510 Answers
448 Consultations

5.0 on 5.0

who will succeed the property after the death of the beneficiary of the Will as per Will?
Whether those people are alive now to acquire the property?
If  so, there is  no need for the grand sons to  initiate any process to  dispose the properties, it will be illegal and invalid in the eyes of law. 
The oldest son as a legal heir or the surviving beneficiary  to the deceased beneficiary, can  very well go ahead with acquisition of the property without taking consent or NOC from his children.
T Kalaiselvan
Advocate, Vellore
35746 Answers
388 Consultations

5.0 on 5.0

1. All the legal heirs of the property can enter into a family settlement deed and arrive at an amicable settlement amongst the legal heirs with equal share in the property.
2. In the family settlement deed, all the legal heirs voluntarily can agree to give POA to one of them and this way the problem can be solved.
Shashidhar S. Sastry
Advocate, Bangalore
1634 Answers
107 Consultations

5.0 on 5.0

1. The right of residence is not a right which can be inherited by the husband and children of the deceased.

2. Your clients should apply for probate of the will considering that the daughter who had the right of residence is now demised. An opportunity will be given to heirs of the demised daughter to contest the suit. 

3. If the son or his father proceed to sell the property then your clients should immediately apply for injunction.
Ashish Davessar
Advocate, Jaipur
22977 Answers
634 Consultations

5.0 on 5.0

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