• Mutual agreement to divide property contrary to will

My mother ( 82 yrs) has made a will in which she is leaving all her property to my sister. There are no other siblings. Our mother has also made my sister the nominee in most bank , FD and demat accounts.
My sister and I do not want to put my mother through the trauma of squabbling about her property during her life time . Therefore  we have ,so far, orally agreed that irrespective of the will my sister and I will divide the property equally. Our mother is not aware of this agreement .

1.	What written legal document should my sister and I make so that after my mother’s death we are both bound by the agreement to divide the property equally.

2.	Will such a document supersede the will in case of a later disagreement between us in which my sister tries to take all the property as per the will.

3.	Will such a document supersede the nominations in the banks FD and demat accounts in case my sister refuses to honor it and wants to execute the will.
Asked 1 year ago in Property Law from Chandigarh, Chandigarh
Religion: Sikh
Hi, By agreement you can't by pass the will, as per will your mother has bequeathed all her property to your sister so she will become the absolute owner of the properties after death of your mother.

2. If she want she can give to you but it is a oral understanding and if she refuse to give the properties after the death of your mother you have no option you have to challenge the will itself.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1. After the demise of your mother your sister can execute a relinquishment deed in your favour to the extent of half her share. Alternatively, both of you may execute a family settlement to divide the property according to your mutual wish.

2. The will in entirety would be superseded by the document of division of property to be executed. 
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0
1) your mother can always revoke the will during her lifetime 

2) on your mother demise your sister can execute gift deed or relinquishment deed in your favour for 50%^share in the property 

3) any agreement entered into by you now with your sister would not be legally binding upon her . it would not supersede the will 

4) nominee is only a trustee for legal heirs . you would have equal share in money lying in bank accounts , demat accounts 
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
Hello,
1) Your sister can relinquish her rights in the properties she is inheriting by the Will by 50% if she chooses to do so and is in agreement as you say. Alternately you may draw up a family settlement Deed that you both will be bound by.

2) It must however be said that any agreement that you enter into now can not supersede the Will as a will becomes operational after the death of the testator and if your sister chooses to go by the Will you would be deprived of any rights as the sister will become the absolute owner.

3) The only option left open to you would be to challenge the Will as being coerced or being made when the mother was mentally and physically not fit to do so. If the Will was prepared without a Doctor's Fitness Certificate appended can be challenged for instance.

4) If there is no specific mention about the cash in the bank by being mere nominee your sister will not inherit them. All legal heirs have equal rights to them.
S J Mathew
Advocate, Mumbai
1949 Answers
65 Consultations
5.0 on 5.0
1.	What written legal document should my sister and I make so that after my mother’s death we are both bound by the agreement to divide the property equally.
You can draw a partition deed as per the mutually agreed terms between you both, get the deed executed and registered before the jurisdictional registrar's office.  


2.	Will such a document supersede the will in case of a later disagreement between us in which my sister tries to take all the property as per the will.
There can be a mention about the Will in the partition deed and how and why  it was ignored and also to make it clear that the said will may not be invoked anytime in the future after this deed is acted upon. 



3.	Will such a document supersede the nominations in the banks FD and demat accounts in case my sister refuses to honor it and wants to execute the will.
The above answer suits this too. 
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
 Is the will is registered or not?
Will is a legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death.

If there is no dispute regarding the distribution of property between you and your sister , then it can be divided as per your wish.A partition deed is enough for partition the same after the demise of mother.

If your sister is stick on the will then you have no right to claim the property.The only option is challenging the will .
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
1. The property still belongs to your mother and she is still alive. You and your sister are planning to enter into an agreement about a property which does not belong to any of you at present and to your mother only. This agreement may not be enforceable,

2. this agreement does not supersede the will.it states that after acquiring the property as per will, she will be bound to part with 50% of it to you without any consideration. She can easily refuse to comply with the terms of the said one sided agreement,

3. Nomination does not give ownership of the fund of the accounts. Nominees are the just trustees and not the owners. if no will has been executed in connection with the bank FDs, you shall have equal right on those amounts after the demise of your mother being her one of the two legal heirs.

Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
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