• Validity of "will" after intestate death

A) Grandfather expired a couple of decades back. 5 yrs before that he wrote his "will" on a set of stamp papers. Grandfather, grandmother and three out of four sons (S1, S2, and S4) signed on all sheets. S3 did not sign as he resides out of country. Last sheet is signed by  three local elders (E1, E2, E3) and two witnesses (W1 and W2) in addition to grand parents and S1, S2 and S4.

B) Main features of the will are:
1) One of the sheets, signed by grandparents and S1, S2 and S4, mentions a property, 'P1', registered for S1, as joint family property and to be gifted to 'S2' to compensate for past usage of S2's dowry money towards joint family expenses.
2) "Will" distributes properties, 'P2+', registered on my grandmother's name in various proportions to S1, S2, S3 and S4.
3) "Will" distributes properties, 'P3+', registered on my grandfather's name in various proportions to S1, S2, S3 and S4.
4) "Will" mentions certain monetary payments made to daughters.
5) "Will" is neither notarised nor registered, even today.
6) None of the sons have mutated their inherited shares yet.


C) Situation
1) Recently S2 violently seized posession of S1's share in P2+ and constructed a dwelling.
2) S1 wants to approach courts to void the will and redistribute the properties fairly.


D) Questions:
1) What actions/causes can void a "Will" after the testator's death (it has been 2.5 decades since the will and 2 decades since the death)? How to approach the court?
2) How can S1 withdraw P1 from the will? Is P1 a legitimate part of the "Will" as the property is in neither grandparents' name and has always been in S1's name?


Regards.
Asked 11 months ago in Property Law from Hyderabad, Telangana
Religion: Hindu
1)S1 should file suit for  partition of property standing in name of his deceased father .by metes and bounds 

2) let S2 rely upon will . after 20 years witnesses must be dead and it would be difficult to prove the will . 

3) grand father could not have bequeathed property standing in S1 name by his wil . only property standing in name of grand father could be bequeathed by will 
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
5.0 on 5.0
1. File an application for grant of probate to make the will valid,

2. Your grandfather can not will S1's property being P1 and this portion of the will is invalid. S1 will remain as the title holder of the property P1 despite execution and probate of the said will.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
1.Your first step will be to apply for probate of the will,

2. After the probate is granted, S2 can file a suit praying for declaration that P1 has been purchased by your grandfather in the name of S1 and it is actually of the grandfather which he has willed to S2 and S2 is now the actual owner of the said property no.P1.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
Questions:
1) What actions/causes can void a "Will" after the testator's death (it has been 2.5 decades since the will and 2 decades since the death)? How to approach the court?
If the Will has not been acted upon till date, a  partition suit can be filed seeking partition and separate possession of his legitimate shares in all the properties left behind by his father,  by S1.  Let the other share holders fight  the case arguing on the basis of Will and try to bring the Will in force by seeking grant of probate of Will.
 


2) How can S1 withdraw P1 from the will? Is P1 a legitimate part of the "Will" as the property is in neither grandparents' name and has always been in S1's name?
This appears to be an invalid bequest made by your grandfather.  If he has no marketable title to the property being bequeathed, he cannot do the same and if does it, the same is invalid in law.  S1 can file an eviction suit against the person occupying it or file a suit to declare his title based on the documents in his possession.

T Kalaiselvan
Advocate, Vellore
13964 Answers
127 Consultations
5.0 on 5.0
Hi, After the death of the Grandfather the will come into affect and the properties has to mutated as per will.

2. Now you have to file a  suit before the court for partition of the properties and if any one of them claim the properties by way of will then the burden lies on them to prove their case before the court that they have succeed  the property by way of will.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1. S1 could have gone to court to seek injunction against S2 when the latter dispossessed him from his property to restrain him from commencing any construction thereon, but this is an opportunity he missed. Now the remedy is to file a suit for eviction against S2.

2. The will cannot be declared as illegal by the court unless it is proved that the testator did not make it with his free consent, or that the testator lacked the competence to make a will in respect of the properties covered by the will. 
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0

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