• Codicil will with LOA

I am writing to seek clarification and address a legal matter regarding the Letter of Authority (LOA) pertaining to my late grandmother's will.

Following my grandmother's passing, my father and I engaged the services of a lawyer to initiate the probate process for her will. The lawyer suggested adding my mother to the LOA, and subsequently, my mother's name was included in the LOA. This arrangement has been in effect for the past four years.

Recently, while applying for a mortgage loan, I received a query from the bank's lawyer stating that the LOA is not valid since my mother is not listed as a legal heir in the will. The bank's lawyer pointed out that it is inappropriate to mention my mother in the LOA due to this discrepancy. As a result, it has become necessary to rectify the LOA.

I am seeking clarification regarding the legality of the LOA in question. It is essential for me to understand the proper course of action and the steps required to rectify this situation.

I appreciate any guidance or assistance you can provide to help resolve this matter and ensure compliance with all legal requirements.
Asked 2 years ago in Property Law
Religion: Hindu

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9 Answers

A Letter of Authority refers to the document (or Letter) that grants the personal representative authority to act on behalf of the estate of the person that died. Probate refers to the court procedure by which a decedent's estate gets administered after death.

Therefore it is not known that what exactly is your question, because it is not known that how your mother's name was included in the letter of authority.

Are you by anyway referring to the list of legal heirs on the petitioner's side as letter of authority?

Your mother is not a legal heir to your grandmother, hence she cannot be included as a petitioner seeking probate of your grandmother's Will.

The bank lawyer is right in mentioning that your mother not being a legal heir she cannot be added as a party to this probate especially during the lifetime of your father.

In any case the probate has been granted by court hence the probate of Will should not be a problem.

You can approach a different bank for loan.

 

T Kalaiselvan
Advocate, Vellore
89988 Answers
2493 Consultations

For obtaining a rectification in the probate judgment, you may have to file a reopen petition seeking to rectify the error in the original petition by filing an amendment petition and for that purpose all the parties to the petition i.e., the defendants are to be notified by a court notice and the court will pass an order only after hearing the defendants also.

 

T Kalaiselvan
Advocate, Vellore
89988 Answers
2493 Consultations

It is legal heirs who are only mentioned. Children and husband of grandmother were the only class-1 legal heir. So your mother and grandchildren of grandmother are not legal heirs of grandmother. 

Siddharth Srivastava
Advocate, Delhi
1551 Answers

Bank officer is correct 

 

under the will your father and you are the only beneficiaries 

 

your mother is not beneficiary in will 

 

hence LOA could not have been issued in her favour 

Ajay Sethi
Advocate, Mumbai
99786 Answers
8146 Consultations

 

You have to take out miscellaneous application for rectifying the mistake made in issue of LOA 

 

2) 

In view of the provisions of Section 152 of the Code of Civil Procedure, 1908, the Court may correct the errors in the judgment, decree or order, arising from any accidental slip or omission. Such errors may occur in the judgment, decree or order on account of the errors in the pleadings of the parties, arising from any accidental slip or omission.

3) in such a situation, the Court may permit the amendment of the pleadings to correct the errors occurring in the pleadings and may accordingly correct the errors occurring in the judgment, decree or order.

Ajay Sethi
Advocate, Mumbai
99786 Answers
8146 Consultations

- As per law, the application for a probate, can only be made by the executor whose name is given in the Will. 

- Further, if there are more than one executors, the probate can be granted to them together or as and when the application for probate is made.

- Further, if no executor is appointed under the Will, only a simple letter of administration is issued by the court but not a probate.

- Since, your mothers name is not mentioned in the Will ,then how she can be a party in the Probate Petition. 

- Hence, the said Probate is wrong , and hence you can move an application before the same court under section 152 of CPC for rectify the Probate. 

- Since, the probate already granted ,then there can not be requirement of other legal heirs signature or appearance before the court. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

Dear Client,

The bank officer's statement is accurate. According to the will, both you and your father are the sole beneficiaries, while your mother is not named as a beneficiary. Therefore, the Letter of Authorization (LOA) cannot be issued in her favor. To rectify this mistake in the LOA issuance, you will need to file a miscellaneous application.

Furthermore, Section 152 of the Code of Civil Procedure, 1908, allows the court to rectify errors in judgments, decrees, or orders resulting from accidental slips or omissions. Such errors can arise from mistakes in the parties' pleadings due to accidental slips or omissions.

In such a scenario, the court has the authority to permit amendments to the pleadings in order to correct any errors present in the judgment, decree, or order.

 

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

You will need the signature if he is a legal heir

Prashant Nayak
Advocate, Mumbai
34522 Answers
249 Consultations

First of all , what the need for LOA or probate ? Not mandatory. Letter of Administration is granted to the beneficiaries. your mother is not beneficiary in the Will. 

You have to apply in court for correction. No need of other heirs.

Yogendra Singh Rajawat
Advocate, Jaipur
23082 Answers
31 Consultations

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