• Asking to sign Consent Affidavit without showing the WIll

Over the last week my mother’s brother (age 75) is repeatedly asking my mother (age 79) to sign a Consent Affidavit for the probate of the will of their parents, but is refusing to show us even a copy of the 'will' for which he is asking her to sign the Consent Affidavit.
This pertains to a property in Mumbai (Heritage class III building) owned by my grandfather (mother's father) -All of us are Christians- All siblings are staying on this property since birth (75 – 80 years). I have been staying there since birth till date, 40 years now. Tax documents/ Property card is still on my Grandparents name.
The so-called wills are of my mother’s father who passed away in 1986 and mother’s mother who passed away in 2006. 
Earlier in 2012 these wills (1 xerox copies & 1 original document) was briefly shown to my mother, but she was only allowed to see the portion of the document pertaining to her and when she asked to make a xerox copy a fight broke out and she was told she cannot make a copy of the documents, we have not seen these documents till date for which she is being asked to sign the Consent Affidavit
My questions are
1. What can my mother’s brother do if my mother does not sign the Consent affidavit, is there anything tricky he can do to bypass this? And what can I do to guard against it?
2. Can my grandmother make a will in 1991 for property that has been willed to her in 1977 (will coming into effect in 1986) but the will has not been probated till date and the title has not changed to her?
3. Can I file a police complaint (Even if it is just to put it on record)? If so under what
4. If my mother passes away, will they need my consent (being the sole legal heir of my mother)?
5.The administrator of the will is my mother's sister, but my mother’s brother is taking all the initiative, is this ok?
6.What should my course of actions be?
Asked 2 months ago in Property Law
Religion: Christian

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10 Answers

1) your mother cannot be forced to sign consent affidavit 

 

2) if her brother wants to apply for probate he would be needing mother consent affidavit . if no affidavit is filed notice has to be given to your mother . she can object to grant of probate 

 

3) it would get converted into testamentary suit 

 

4_for Christians probate is not mandatory 

 

5) executor has to apply for probate of will 

 

6) mother can issue legal notice to her siblings to claim share in property 

 

7)file suit for partition to claim her share in property 

 

 

 

 

 

Ajay Sethi
Advocate, Mumbai
89092 Answers
6362 Consultations

5.0 on 5.0

1. In the given situation, you may ask your mother not to sign any paper, especially the so called consent letter without seeing the contents of the Will and confirming her benefits made in the Will. 

If you apprehend your maternal uncle to play any fraud on this, you may better file a suit for partition asking your mother's legitimate share out of her deceased father's property. Let she not whisper anything about the Will or even the knowledge of an existing Will in her suit for partition.

She can also seek an interim injunction restraining them from alienating or encumbering the property in any manner till the disposal of of the main suit. 

2. Your mother can very well make a Will for the properties to which she is commanding clear and marketable title.

.No probate is necessary for Christian and Muslim Wills.

3. No t necessary, because it is a civil matter, instead you may better file  a suit for partition.

4. Yes, you are entitled to inherit your mother's share along with yor father, if living.

5. The administrator of the Will alone has the rights to administer the proeprty bequeathed in the Will, hence your uncle's intervention in this regard would be considered as contrary to law/rule.

6. You can take action as suggested in the first answer above. 

T Kalaiselvan
Advocate, Vellore
79250 Answers
1618 Consultations

5.0 on 5.0

  1. Consent affidavit is necessary document for him which  that cannot do without. Insist of perusal of original will.
  2. Property bequeathed to grandmother in 1977 and will executed by her in 1991 with regard to bequeathed property, such will is valid.
  3. An offence is  committed only if he tries to take her consent by forced. Only asking to give consent is not a crime. Police complaint can be registered  legally but you can give written information of the attempts made by him.
  4. As a sole legal heir they do need your consent.
  5. it is for administrator to take all decision and actions, he has no power to act in place of administrator.
  6. Don’t give any consent without perusing original will.

 

 

Ravi Shinde
Advocate, Hyderabad
3153 Answers
42 Consultations

5.0 on 5.0

1. In the petition he has to disclose the names of all legal heirs. If any legal heir has not given a consent affidavit then the court will issue him a notice using his details provided in the petition. Upon receipt of notice the legal heir has to file a caveat with an affidavit in support stating his grounds of objections against the grant of the petition. If the brother does not disclose the details of all heirs then he will be liable for suppression of material facts and any grant obtained by him from the court by concealing facts from the court, will be liable to be revoked. So there are adequate safeguards against any tricks sought to be played by the Petitioner 

2. Yes even if the bequeathed property is not mutated in her name, she can still make a Will for that property. If the Will under which the property was bequeathed is not proved as per law then the second Will to the extent of that property will lapse and will be of no effect. 

3. Not required. Police is useless. It will say that it's a civil matter. Even if you want to place something on record, I would not suggest as it wont serve any purpose. However its your choice if you wish to write any letter to the police 

4. Yes the heir of the legatee will succeed to the bequest 

5. It's clear that the brother is having some personal interest and is using his sister as a front 

6. Dont sign the consent affidavit unless the Will is shown to you 

Yusuf Rampurawala
Advocate, Mumbai
6999 Answers
79 Consultations

5.0 on 5.0

Dear client,  I am sorry to hear that but in this case you must not let your mother sign the documents with going through its contents. 

Also, According to the laws of the country, it is not necessary to go through probate if there is no dispute regarding will. However, going through a probate is preferable as it gives court certification to the validity of the will in question. Even though your grandmother is entitled to make a will but since the title has not been transfered to her name it will create some issue.

Also, you may file a police complaint in order to be on safer side.

 

Yes, your concent will be of paramount importance in case your mother dies.

An executor appointed under a Will, in effect, stands in the testator's place after death. Similarly, an administrator stands in the place of the deceased even though he or she is appointed by the court. An executor is usually appointed by name in the Will. However,  in this case since no major role is taken by your uncle it is totally admissible.

 

Anik Miu
Advocate, Bangalore
5374 Answers
58 Consultations

4.9 on 5.0

  1. There is no consent affidavit required to get a Will probated. The person coming up with this, has some ulterior motives to make your mother sign something which is not required. There's no provision at all for a consent affidavit to get a Will probated. 
  2. Your mother's brother, under no circumstances, can lawfully get the Will probated. Only the administrator of the Will is the lawful person, and the administrator is your mother's sister. 
  3. Considering 1 & 2, your mother should refuse to sign any document. In the eventuality of her passing away, you too aren't obliged to sign any document to get the Will in question probated. 
  4. Wills are in the domain of civil law, so there's no scope for police complaint. Your mother should file a police complaint only if there's a threat of violence.
  5. Your mother can and should sue her brother for nuisance for repeated pesterings to sign. 
  6. ९८२०८९७८८४ (Nine eight two zero eight nine seven eight eight four.) 

Netra Mohanchandra Pant
Advocate, Navi Mumbai
1433 Answers
5 Consultations

4.4 on 5.0

Is there sufficient material here to file a case of pestering/ nuisance/ misinformation?

Its contentious and involves disputed questions of facts. Unless you know the contents of the Will, its difficult to say. If the Will bequeaths the property to the brother and that is being concealed from your mother and she is being asked to file a consent affidavit then a case can be made out. Without seeing the Will not possible to say

Are the executors of the will required to show a copy of the will to the beneficiaries by law?
Not as such. The duty of the executor is to protect the interest of the beneficiary. But here you dont even know who are the beneficiaries named in the Will

All the property tax etc are being paid by my mothers brother(not the executors of the will) Is this ok?
He is paying it in his capacity of a co owner on behalf of all legal heirs. So that does not clothe him with the attributes of the owner. On death of testator the property vests in the executor. So he has to ideally take care of all outgoings of the property. But how is all this going to help you? Without seeing the Will how are you saying that the testator had appointed an executor in the Will?

The will does not state anything about me(sole legal heir of my mother staying on the property), only talks my mother, how does the law look at that?
Again this is like shooting blind shots in the air without even looking at the Will

If a Probate gets converted into a testamentary suit what time frame are we looking for resolution?
takes many years which cannot be predicted. Minimum 5 years is a given unless settled amicably sooner


you can get my contact details from kanoon and fix an appointment with me for a paid consultation OR 

you can book a paid phone consultation on kanoon to talk to me

Yusuf Rampurawala
Advocate, Mumbai
6999 Answers
79 Consultations

5.0 on 5.0

Executor is bond to inform beneficiaries of will executed by deceased testator 

 

if probate gets converted into testamentary suit it would take over 10 years to be disposed of 

Ajay Sethi
Advocate, Mumbai
89092 Answers
6362 Consultations

5.0 on 5.0

There is no material to file a nuisance or pestering case against your mother's brother.

The executor of the Will need to keep the beneficiaries informed about the benefits named in the Will. 

The executor of the Will is the administrator of the estates of the properties bequeathed in the Will hence there is nothing strange that the executor paying the taxes  and updating the records periodically.

There is no necessity for the Will to mention everything elaborately.

Your mother is the beneficiary and not you. You can become the legal heir to your mother only after her lifetime and not before that. Therefore you have no rights in the Will bequeathed property at least not during the lifetime of your mother. 

The probate of Will is different to that of what you mention about the testamentary suit .

The time taken for disposal of probate petition cannot be predicted owing to various factors involved in it. 

T Kalaiselvan
Advocate, Vellore
79250 Answers
1618 Consultations

5.0 on 5.0

Yes

It needs to be filed in court

The will should be clear 

Yes it's converted if there is dispute between parties

Prashant Nayak
Advocate, Mumbai
28106 Answers
93 Consultations

4.4 on 5.0

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