• Do married daughters have equal legal right on father's property

My maternal grandfather had a two storied house. He has three daughters(all married ) and a son(married ). Before his death (20 years ago), my grandfather made a will but probate was not taken. In the will, it's written that the elder and the younger daughter will not get any portion of the property as they don't need. But the second daughter will get a backward portion of the house and the son will get the rest of the house after my grandmother's death. No mutation of the house done yet after death of my grand father. Although the will was not send to the court to take probate, my question is : 1)Does the will have any legal importance? 2)Will the three daughters and the son get equal portions of the house? 3)All of the siblings were born after 1956 but before 2005. To take probhet of that will, does everyone of the heirs need to agree? 4)Can the son get the entire house, after my grandmother's death without giving any portion to the daughters? 5)Can my grandmother (alive now) legally give off her portion to anyone? 6) Can my grandmother make a new will?
Asked 1 year ago in Property Law from Kolkata, West Bengal
Religion: Hindu
1) will represents last testament of the testator ie your grandfather 

2) I presume will has been attested by 2 witnesses 

3) as per will only son and second daughter are beneficiaries 

4) other daughters won't have any share in property 

5) grandmother has only life interest in the house 

6) she cannot bequeath any share to daughters by a will 

7) beneficiaries can apply for grant of probate but it has to be proved that will was executed by grandfather 

8) other legal heirs can oppose grant of probate but they have to prove that grandfather was not of sound mind or will executed under coercion or undue influence
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
1)Does the will have any legal importance? 
The Will as well as the bequest made in it are very much valid, in the event of anyone challenging it then you may approach the jurisdictional court of law seeking grant of probate of Will  or else the Will may simply be acted upon and your mother can have a partition deed drafted as per Will in mutual agreement with your uncle i.e., the co-beneficiary of he Will, and get it registered for applying for mutation of the same.



2)Will the three daughters and the son get equal portions of the house? 
The property can be shared as per the bequest made in the will, if the other daughters have been omitted then they may not be entitled for any share in the testamentary property.




3)All of the siblings were born after 1956 but before 2005. To take probhet of that will, does everyone of the heirs need to agree? 
For seeking grant of probate, the other heirs of the deceased testator are to be impleaded as respondents to hear their objections, if any, for this their years of birth is not a criteria.



4)Can the son get the entire house, after my grandmother's death without giving any portion to the daughters? 
The son either has to acquire the property as per the bequest made in the Will or has to share the property along with his sisters as per Hindu Succession Act.


5)Can my grandmother (alive now) legally give off her portion to anyone?
If the grandmother has been bestowed with only life interest in the Will then she has no share in the property, however if the Will is not being acted upon, i.e., if the Will is ignored and the family agrees for partition among themselves, then the grandmother is entitled to a legitimate share in the property which she can give away or relinquish the rights to that share in favor of anyone of her choice. 



 6) Can my grandmother make a new will?
If she is allotted with a share then she can execute a will to that particular share alone, and not for the entire property.
T Kalaiselvan
Advocate, Vellore
13931 Answers
127 Consultations
5.0 on 5.0
1. No. It has no value more than a scrap paper until probate is taken on it,

2. Daughters will not inherit any share of the property, as per recent Supreme Court Judgement, since their father died before 2005,

3. After probate application is filed all legal heirs will get copy of it to contest or agree which they can do as per their wish. Court will hear all and will either grant probate or reject the application,

4. Yes, since he is the only legal heir of his father who died before 2005,

5.Yes, your grandmother can gift/settle/will it her share of the property to anyone she wishes to,

6.Yes, she can execute a will for her share of the property.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
Hi, you have to challenge the genuineness of the will as will.

2. If you able to prove that the will is not valid then all the daughters have right over the property.

3. If the will is genuine as per the intention of the testator the property will go. 
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
Your grand mother can write a new will for her self acquired property or shares allotted to her .In the above mention property she has no power to make a will because she has only life estate in will.If you are not succeeded in proving the will the shares is also allotted to other siblings .The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it.

A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the estate to the executor of the testator. It is the official evidence of an executor's authority. A probate is mandatory when the Will is executed by a Hindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or pertains to immovable property situated in Mumbai, Calcutta or Chennai.

Effect of grant of probates : A probate granted by a competent court is conclusive evidence of the validity of a Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding to revoke the probate. However, it only establishes the legal character of the executor and in no way decides the title or even the existence of the property devised. The grant of the probate decides only the genuineness of the Will and the executors right to represent the estate.

The grant of a probate is conclusive evidence of the testamentary capacity of the person who made the Will.
A probate is conclusive as to the genuineness of the Will and appointment of the executors.
Once a probate is granted, no suit will lie for a declaration that the testator was of unsound mind.
Probate is conclusive as to the representative title of the executor.
To whom probates can be granted : Under the Indian Succession Act, 1925, a probate can be granted only to an executor appointed under a Will. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government.

When a probate can be granted : A probate cannot be granted until the expiration of seven days from the date of the testator's death.

Letters of Administration: In the event a person dies intestate or a Will does not name any executor, an application can be filed in the courts of law for grant of probate.
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
1. If the property is situated at the place where probate is mandatory then the will has scrap vale without probate. The beneficiaries of the will are at liberty to apply for probate even now. As and when probate petition is filed the court will seek objections from the other heirs as to the grant of probate. If the probate is denied then all the heirs i.e daughters and son will succeed equally to the property.

2. The date of birth of heirs is immaterial as the property is not ancestral.

3. Only the beneficiaries of the will are required to seek probate. No agreement is required among all the heirs.

4. Nobody can get a share greater than what has been reserved for him in the will.

5. Unless there is an embargo on the right of your grandmother to sell the property she is at liberty to make the sale or a will.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
1. Will is valid and the property would be devolved only as per terms of the Will unless the siblings decide otherwise.
2. If the sons and daughters decide to divide the property equally then they can do so ignoring the Will. But if the beneficiary of the Will decides to apply for Probate then devolution of property will take place as terms of the Will.
3. The Will is valid and the provision of law you are saying has no application in your case.
4. The property will be divided as per terms of the Will.
5. Grandmother has no share in the property of your grandfather since he has executed a Will.
6. Grandmother can execute a Will in respect of her self acquired property.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
4.9 on 5.0

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