• Proceeds of selling the house as per the Will

My father had executed a will to divide his house amongst me, A, and my siblings B and C. He passed away 11 days ago, and my mother is still alive. He had given a copy of one of his wills (there may be more) to all the siblings, and I want to seek some legal clarification regarding the contents of this will. Once I get the death certificate, I will get a copy of all the wills he has executed during his lifetime.
He has distributed the property (that has a ground floor and first floor, all having independent access) as follows:
A: 1100 square feet on the ground floor (52.3 % of the total space)
B: 600 square feet on the first floor (28.57% of the total space)
C: 400 square feet on the first floor (19% of the total space)
I am reproducing the following paragraph that needs legal interpretation:
“ I hereby declare that after the lifetime of my wife, my children jointly come to a conclusion that it would not be possible to distribute the property in the manner I have devised, then I give them an opportunity to sell the whole house at the prevailing market rate and divide the proceeds with A getting 40%, B 30% and C 30%”
Actually, the above will was intelligently executed with the active participation of my sibling C, after my father was medically diagnosed with dementia 14 years ago.
I have the following choices:
1.	Contest the will that will take a long time to resolve
2.	Accept the will and take 40%
I am also not in favor of the second option, since my sibling C, who owns 19% of the first-floor property, would receive 30% if it is sold, per the will. In addition, siblings B and C are not averse to taking some proceeds in cash, which I am definitely against.
1.	 Whether I can accept the will and, after the demise of my mother, sell my property independently that might fetch more than 50% and on my terms. The will is not clear on this matter. 
2.	Sibling C is unmarried and if contesting the will takes too much time to resolve and does not materialize during the lifetime of C, does it go back to the estate?
Asked 6 hours ago in Property Law
Religion: Hindu

First answer received in 10 minutes.

Lawyers are available now to answer your questions.

7 Answers

if father was suffering from dementia and you have evidence to back your claim father was not mentally for to execute the will 

 

2) litigation is long drawn process and suit may take 10 years to be disposed of 

 

3) on mother demise you have 40 per cent share in property 

 

4) you are at liberty to sell your share in property however your siblings may seek orders  to set aside sale on grounds that in case of sake you have only 40 per cent share 

 

5) C can execute will bequeathing his share in property during his lifetime 

Ajay Sethi
Advocate, Mumbai
100509 Answers
8219 Consultations

You can do the point no 1 accepting and later after demise of mother go forward but once after acceptance you can’t later challenge the same will

Prashant Nayak
Advocate, Mumbai
35044 Answers
256 Consultations

C may not be married but on demise of your mother he will have share in property as per will.

 

on his demise intestate property would devolve on his siblings 

Ajay Sethi
Advocate, Mumbai
100509 Answers
8219 Consultations

It is necessary to peruse will to advise further 

Ajay Sethi
Advocate, Mumbai
100509 Answers
8219 Consultations

The Will states that your mother is vested with life interest.

This implies your mother has a life interest (the right to live there or enjoy the property) until her passing. No division or sale can happen without violating the will until then.

Even though your father specified square footage and floors, a house is structurally a single entity. Unless the property is officially partitioned into separate legal titles with the local municipal authority (which requires independent utility connections, structural safety approvals, and separate tax assessments), you cannot easily sell "1,100 sq. ft. of a ground floor" to an outside buyer. Most buyers and banks will not touch a fractured property without a clear, independent title deed and it can be considered to be defective title.

The joint conclusion clause acts as a safety valve written into the will. It says if you jointly agree that physical distribution is impossible, you sell the whole house. If you try to sell your part independently, siblings B and C could legally block the sale by arguing that the property cannot be physically or legally split, thereby forcing the "sell the whole house and split 40/30/30" clause into effect.

If you accept the will, you are bound by its terms, including the risk of being forced into that 40/30/30 split if a joint physical division fails.

If you choose Option 1 (Contest the Will) and the legal battle outlives sibling C, what happens to C's share depends entirely on when C passes away relative to the final court judgment.

Since C is unmarried and your father has passed, C's primary legal heir under most succession laws (like Hindu Succession Act or standard civil laws) would be your mother.

If your mother is also no longer alive at that point, C’s share would be divided equally among the surviving siblings (you and B). It does not automatically "go back to the estate" to benefit you exclusively; it is treated as C's personal asset passing to C's heirs.

If the court rules that the will is invalid (due to your father's dementia), the property is treated as if your father died intestate (without a will). Then the intestate succession law will prevail.

You mentioned siblings B and C are open to taking proceeds in cash, which you oppose. In real estate transactions, demanding "cash" (unaccounted or under-the-table money) is often an attempt to evade capital gains tax or stamp duty.

Engaging in undocumented cash transactions carries severe financial and legal penalties. If the property is sold as a whole, insist that all transactions go through official banking channels (check, bank transfer) to protect yourself from legal liability.

T Kalaiselvan
Advocate, Vellore
90713 Answers
2523 Consultations

In legal terms, a will does not need to specify what happens to a beneficiary's heirs. If the will is accepted and C survives your father, C’s share becomes C’s personal property. What happens to that property if C passes away is governed by Succession Law, not your father’s will.

T Kalaiselvan
Advocate, Vellore
90713 Answers
2523 Consultations

If a lawsuit to contest the will takes 10 years (which is, unfortunately, a very realistic timeline for property litigation in India), the question of who physically and legally holds the property during that decade depends entirely on who is currently in possession and whether an Executor was named.

The law generally prioritizes maintaining the status quo while a court decides the validity of the will. 

As long as your mother is alive, she holds the primary legal right to possess, reside in, and enjoy the property.

Even if you file a lawsuit to contest the will, the court will not throw your mother out. She holds the right to occupy the house or collect its rents to maintain herself during her lifetime.

If an Executor is named: Legally, the property "vests" in the Executor during the litigation period. They hold the legal title as a trustee until the court determines if the will is valid or invalid. The executor could be your mother, you, or even sibling C.

T Kalaiselvan
Advocate, Vellore
90713 Answers
2523 Consultations

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer