• Unregistered will stolen by brother where he is executor

Our father has left an unregistered will with our brother as an Executor after our mother's death. Under the pretext of keeping her, he dumped her in an old age home. We two daughters brought her back to her  .She found that our brother has taken away besides all cash and documents, father's original will too. He returned cash and documents, but he refuses to return the original will. Now he does not take mother's calls. He had told mother he wanted to put his married daughter in her flat and even install an aircon. Can my mother change the will as he refuses and now does not take her calls? Can she gift the flat to her daughter ONLY that she acquired from our father and which was his self earned property? This is because of him being evil in his intentions and also because he syphoned off some money from bank and P.O. investments. My father had mentioned as three equal shares but our brother does not want the property to be sold in future and us to have our share. What does our 84 year old mother do in such circumstances as she wants to protect our interests?
Asked 6 months ago in Property Law from Mumbai, Maharashtra
Religion: Hindu
Hi,  As the will was executed by your father now your mother can't change the will.

2. As the property is the ancestral property of your father after demise of your father all the legal heirs have right over the property including two daughters and your mother.

3. So your mother and two daughters can file a suit for partition against your brother. Suppose in the suit if  your brother come with defense that your father has execute the will then ask him to deposit the will in the Court so that you will able to get the copy of the "WILL". or otherwise you will get your share in the property.

4. You have one more options that your mother can gift her share to one of you, while executing gift deed.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
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1) your mother can issue legal notice to her son to return the original will stolen by him 

2) also file police complaint of criminal breach of trust against her son under section 406 of IPC 

3) if son says there is no will file suit for partition for division of property by metes  and bounds 

4) mother can only gift her one fourth share to her daughters 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
1) it is necessary to peruse will executed by father 

2) if executor is not applying for probate beneficiary can apply for probate of will 

3) if as per will flat bequeathed to mother she can after flat is transferred in her name execute gift deed in favour of daughters 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
ONLY that she acquired from our father and which was his self earned property? This is because of him being evil in his intentions and also because he syphoned off some money from bank and P.O. investments. My father had mentioned as three equal shares but our brother does not want the property to be sold in future and us to have our share. What does our 84 year old mother do in such circumstances as she wants to protect our interests?

In the absence of Will no one will come to know what is written in Will. 
Therefore in my opinion, before some adverse incidence takes place, it would be better to have a partition of the property, since it your father's self acquired property, you, your other sister and your mother are entitled to an equal share in the property along with your brother, therefore you people can seek 3/4th share in the property, if he is not agreeing, you may file a partition suit seeking your shares in it.
This may be better solution for the present.
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
Mother wants to gift the flat to her two daughters so it can be sold and that brother does not prevent the sale. After that the moneys are to be divided ito three equal shares where brother too gets his share as per father's will.

Mother cannot gift the flat in the name of daughters.  She has only 1/4th right in the property since the will is not there.
However if all agree for selling the property then your brother can get 1/4th share in it.
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
1. it is NOT an ancestral property but self earned property by my father with his own income.
2. We have a copy of the will.
3. But he has forged parents signatures at many places so mother has lost trust in him.
6. Since she gets 100 shares after flat is transferred to her name by society, can she gift the flat 50:50 to her two daughters?

If you have a copy of the will then you can apply for grant of probate for it.
Once the will is probated the will can be acted upon as per the bequest made in it.
Shares in the society shall not confer title to the property to your mother hence she cannot gift the property to you both as per your proposal.
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
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1. The drawback you face is that the will is unregistered. It is always advisable to register the will to prevent its misuse. Because the will is not registered your mother and you are at the mercy of your brother. Be that as it may, unless your mother obtains the original will of her deceased husband she cannot bequeath the properties that were bequeathed to her by her husband. This, however, does not preclude her from bequeathing the properties the title of which is clear in her favour.

2. Your mother and you and your sister can though file a suit for partition to cull out your share in the property of your father as on the demise of your father his widow and children succeeded equally thereto.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0

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