Consent of heirs needed if bequest exceeds a third of estate - Livemint

Is it true that a Muslim can bequeath only one-third of his property through a will? Is there any provision through which he can give all his property to any one he wants through a normal will? Can he make a gift of all his property without any restriction of one-third in a gift deed?
—Neha Jaiswal

Muslims are governed by their personal (Sharia) law and by the rules of intestate succession as provided in this law. Strictly speaking, there is no restriction as to the person to whom a property can be given through a will. However, under Muslim law, there are a few restrictions as to the persons to whom a bequest can be made.

Bequest to an heir: Under Shiite law, Muslims can bequest one-third of their estate without consent of heirs. Consent of heirs is required if bequest exceeds one third of estate. Under Sunni law, bequest to an heir is invalid unless consent of heirs is obtained after death of testator.

Bequest to an unborn person: Under Shiite law, if the child in the womb is born within 10 lunar months, it is valid. Under Sunni law, the bequest to an unborn person is void, unless a child in womb is born within 6 months of the will.

Bequest to murderer: Under Shiite law if death is not caused intentionally, only then is it valid. Under Sunni law bequest to murderer is void.

The will of a Muslim is not required to be in writing. If it is in writing, it need not be signed and if it is in writing and signed, it need not be attested. Here are the essentials of a valid gift under Mohammedan law:

1. The donor must be at least 18 years of age and of sound mind. He may dispose of the whole of his property by gift to any person including a stranger.
2. There must be a declaration of the gift by donor and an acceptance of the gift by donee.
3. In case of movable property, it should be delivered.
4. In case of immovable property of which the donor is in possession, the donor should physically depart from the property and the donee must make a formal entry.
In case the immovable property of which the donor reserves the right to receive rent but continues to be in possession of the property, if the person to whom the gift is made does an act by which the property is conferred on him without possession being actually given, the gift is complete. If the immovable property is in the occupation of tenants, a request by the donor to the tenants to acknowledge the donee as the owner of the property will suffice.
5. In case of incorporeal property, the donor must show a clear intention to confer the property upon the donee.
6. In case of property which is held by a person against the will of the donor, gift of such property is not valid unless the donor recovers possession and puts the donee in possession of it.

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It is advisable to appoint an executor in your will - Livemint

My husband passed away five years ago and he has not left a will. I have a property that I jointly own with him. My daughter is married. My son is unmarried and he stays with me. I want to make a will. Can I make a will for the entire house or just half of it since I am a joint owner?
—Swati Nair

We are assuming that you and your husband held the said property as co-owners and not as joint owners and that each of you had a 50% share; your husband was a Hindu and was governed by the provisions of the Hindu Succession Act, 1956 (Act) on the date of his demise; the property is self acquired and you and your two children are the only class I heirs of your husband.

Section 8 of the Act lays down the general rules of succession in the case of Hindu males who have died intestate and inter alia states that the property shall devolve firstly, upon the heirs of the deceased, being class I heirs and secondly, if there are no class I heirs, then upon the class II heirs.

Assuming that you and your children are the only class I heirs of your husband surviving at the time of his demise, 50% share of your husband in the said property shall devolve upon you and your children in accordance with the provisions of Section 10 of the Act. Section 10 of the Act lays down the rules for distribution of property among class I heirs of the deceased, and inter-alia states the widow of the deceased shall take one share and the son and the daughter of the deceased shall each take one share in the property of the deceased.

Hence, the 50% share of your husband shall be divided into three equal parts whereby you, your son and daughter shall each be entitled to about 16.66% share in the said property.

You previously being the owner of 50% share in the said property are now the owner of 66.66% share in the said property and your son and daughter each own 16.66% share in it. At the time of drafting your will you can bequeath to any person of your choice your share in the said property.

While drafting a will you must keep in mind that the will must be in writing; the testator (i.e. you in this particular case) must sign it and shall be attested (signed) by two or more witnesses. It is advisable that you appoint an executor in your will. This is done in case the will is challenged. All the property bequeathed under the will shall vest in the executor.

Do remember that under Section 67 of the Indian Succession Act, 1925, a legacy to the attesting witness of a will is void under the section, i.e. you cannot bequeath any part of your property to a person who has signed your will as a witness as that bequest shall be void.

Also as per the Registration Act, 1908, a will is not a compulsorily registerable document and there is no stamp duty payable on a will.

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You can apply for probate even without a copy of will

My father had inherited some land from his father, who passed away two years ago. But he has lost the copy of the original will and his brother is trying to claim right over the property. Is there any way to nullify this claim?
—Sarvesh
While answering this query, we are assuming that your grandfather was a Hindu and was governed by the provisions of Hindu Succession Act, 1956, on the date of his demise and that your father and your uncle (your father’s brother) were the only surviving class I heirs of your grandfather at the time of his demise. We are further assuming there was no probate of your grandfather’s will applied for/granted by a competent court.
If your father has a copy or a draft of the original will executed by your grandfather, section 237 of the Indian Succession Act, 1925, will be applicable, which reads as follows: “When a will has been lost or mislaid since the testators death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or draft of the will has been preserved, probate may be granted of such copy or draft, limited until original or properly authenticated copy of it is produced.”
Thus, if your father has a copy or draft of the will executed by your grandfather, he may apply for a probate by annexing the said copy or draft. If your father obtains a probate from a court of competent jurisdiction, no right can be claimed by your uncle over any property bequeathed to your father under the said will.
Further, section 238 of the said Act reads as follows: “When a will has been lost or destroyed and no copy has been made nor the draft preserved, probate may be granted of its contents if they can be established by evidence.”
Thus, if your father does not have a copy or draft of the will executed by your grandfather, he can nevertheless apply for a probate. However, the grant of a probate by a competent court is subject to your father having evidence that your grandfather executed a will and also having evidence with regard to the contents of the said will (specifically that the said land was bequeathed to your father under the said will).
If your father does not have a copy or draft of the said will or is not in a position to prove the contents of a will in order to obtain a probate from a competent court, he can apply for letters of administration as if your grandfather had died intestate or without a will. However, it must be noted that if your father applies for letters of administration, the entire property of your grandfather will be divided and there is no guarantee that your father to the exclusion of your uncle will inherit the said land (the land bequeathed to him under the said will). Please note that in such a case, the entire estate of your grandfather shall be equally divided among your father and your uncle.

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Sale deed not mandatory if property bought from builder

What is the difference between an agreement for sale and a sale deed? I bought an apartment in Mumbai and have entered into an agreement for sale which is duly registered. Should we make a sale deed after full payment? —Jigar Shah

We are assuming that you have purchased the apartment under the provisions of the Maharashtra Ownership of Flats (regulation of the promotion of construction, sale, management and transfer) Act, 1970, (MOFA) and that you have paid 20% or more of the purchase consideration till date and that you have executed a MOFA agreement—an agreement for sale with the builder with respect to the said apartment. Further we are assuming that the said agreement for sale is adequately stamped in accordance with the relevant article contained in schedule I of the Maharashtra Stamp Act, 1958, and that the agreement for sale is registered with the applicable office of the sub-registrar of assurances.

Section 4 of MOFA requires a builder to execute an agreement for sale containing inter-alia the terms as prescribed therein with its purchasers upon receipt of consideration as stated therein with respect to the apartment agreed to be sold by the builder. Thus there is no requirement to execute a sale deed, once the agreement for sale has been executed. However, it is to be noted that in the event that you have paid only part consideration to the builder while executing the agreement for sale, you must ensure that upon payment of the balance consideration the builder gives you receipts. If you pay the balance consideration in instalments, then you must ensure that the builder issues you a receipt for every instalment.

Further you must ensure that on completion of the construction of the building and upon such number of persons as prescribed under section 10 of MOFA having purchased the flats, the builder takes steps to constitute a society or any other organization as contemplated under MOFA agreement. You must also ensure that upon formation of such organization, the builder duly executes a deed of conveyance within such time as contemplated under the MOFA agreement and if not prescribed therein then the time as prescribed under section 11 of MOFA in favour of the organization formed conveying the land on which the said building has been constructed along with the building in favour of the organization. It is also very critical not to take possession of the said apartment without an occupation certificate being obtained by the builder. You must also ensure that upon formation of the society, a share certificate is issued to you by the society stating that you are the owner of a certain number of shares. The said share certificate is to be signed by the chairman of the newly formed society.

Please note that it is only in this situation, that is upon purchase of a flat directly from the builder by executing a MOFA agreement, in accordance with the provisions of MOFA that it is not necessary for you to execute a sale deed subsequent to the execution of the MOFA agreement.

In the event that you are not purchasing a property from a builder, and are purchasing the property from a prior owner of the flat, that is either an individual or a company, it is essential that you execute a deed of transfer (or a sale deed) after the execution of an agreement for sale by the transferee and the builder. This is imperative as the deed of transfer will be your title document. In that situation, it is also advisable that you pay the full stamp duty on the deed of transfer and get the same registered with the office of the sub-registrar of assurances. It is also imperative to inter-alia take custody of the share certificates given to the owner (transferor) of the apartment and the original agreement for sale executed by the transferor and the builder and a no objection certificate from the society in which the said apartment is situated for the sale of the apartment to you and to admit you as a member of the society.

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Intergenerational transfer of assets: will or gift deed?

Circa 1963: Devraj Gupta was a leading and astute businessman in Mumbai. Not only had he created a reputed business but also he had created assets and properties for his family. With age not on his side, he had a justified and growing concern: “If something were to happen to me, I should be able to ensure that these properties transfer smoothly to my wife and the next generation.”

On 28 March 1964, Devraj Gupta registered his will bequeathing his properties to his wife and sons in equal measure. He was a satisfied man that he has done what most Indians don’t do—made a will and ensured a smooth transition of his assets. But he couldn’t have been more wrong. It would take almost 50 years after his death for his wish to be fulfilled.

Circa 1969: After his demise in October 1965, as required under law his widowed wife filed a probate petition for the will. Four years later after following the due process, the Bombay high court on 12 March 1973 granted the probate to the will.

On 10 May 2013, the Bombay high court dismissed subsequent petitions filed by other members of the family seeking to revoke the probate and petitions disallowing the respondents in anyway dealing in the said properties. (You can read the complete high court order here: http://bit.ly/WillProb)

This is an exceptional example that demonstrates the need of using the right vehicles for different asset classes during the process of transfer of wealth from one generation to another and also avoiding legally locking up of assets in this process. Effectively the transfer of wealth in such cases skips the generation where it is intended to benefit but the benefits go to the generation after next—the grandchildren—thus delaying the economic value added.

India will see the initiation of intergenerational transfer of assets of over Rs.10 trillion in the next decade. Such a large transfer of wealth from one generation to another will lead to two challenges: Need for tax-efficient low-cost vehicles for this transfer and ensuring effective time-bound transfers to beneficiaries.

A will or testament is a relatively simple way of intergenerational transfer of wealth and given its importance, everyone should have a will irrespective of their age or net worth. On the positive side, it is relatively easy to write and it can be revoked with a new will or amended through a codicil as many times as one wants. Over the years, variants such as video wills and online wills have emerged and are acceptable in India. On the negative side, a will as an instrument is more liable to be challenged thus prolonging the process of transfer of wealth to the rightful owners than other instruments. Another important facet is that law of limitation may not always be applicable for challenging a will thus leading to litigation even after an undefined period especially in the case of immovable properties. Legal disputes could even reduce the resale value of assets or leave heirs to bear hefty fees, eroding the value of inherited assets.

Gift deed as a tool for transfer of wealth

A gift deed is a much more efficient instrument for transferring immovable properties from one generation to another. A gift deed can be used for all asset classes. However, it derives its utility in the case of immovable properties due to the significant benefits it gives to the next generation. The positives of a gift deed are that the transfer of assets happens during the life-time of the testator (donor) and the transfer happens immediately compared with using a will which is a much longer process. The other alternative of formulating a trust—used by a lot of high net worth individuals—for transfer of assets is a legal process which takes some time before the actual transfer can take place. Additionally, a gift deed for immovable properties needs to be registered for it to be effective and by virtue of being registered is difficult to be post-facto challenged by other parties thus making it virtually litigation free. The taxation for gift deeds in being tax-free for both the donor and donee when in favour of defined relatives is also beneficial.

On the flip side, a gift deed is irrevocable once executed and thus does not allow for any changes even if one changes his mind. On the other hand, a will is a living document and any changes can be made till the testator is alive. There are also cost implications in the case of a gift deed for immovable properties in the form of stamp duty for registration. The stamp duty for registration of a gift deed varies from state to state but in most cases is significantly lower than the normal stamp duty and is payable usually at the circle rate or ready reckoner rates as published. Thus the effective cost of executing a gift deed is marginal given the significant benefits it offers.

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Gift deed is considered valid when it is made voluntarily

I want to gift a commercial property in a co-operative housing society to my daughter. However, my sale deed is not registered. Is it possible to gift the flat to my daughter? What is the procedure and what are the documents required?
—Krishna Kumar
While answering this query we are assuming that you purchased the said commercial property over 30 years ago. We are further assuming that full stamp duty has been paid on the said sale deed in accordance with the provisions of the Stamp Act applicable to the state where the said commercial property is located.
Section 54 of the Transfer of Property Act, 1882 defines sale as a transfer of ownership in exchange for a price paid or promised or partly paid and partly promised. This section also states that the transfer of tangible immovable property of the value of Rs.100 or more must be by way of registered instrument.
Section 17 of the Registration Act, 1908 lays down the documents, of which, registration is compulsory.
Section 17(1)(b) of the Registration Act inter alia provides that any non-testamentary instrument which creates, or declares whether in present or in future, any right, title or interest, of the value of Rs.100 or more to or in immovable property is a compulsorily registerable document. The sale deed by virtue of which you are entitled to the said commercial property is thus a compulsorily registerable document.
Section 49 of the Registration Act inter alia states that no document which requires compulsory registration either under section 17 of the Registration Act or under any provision of the Transfer of Property Act, shall affect any immovable property comprised therein, or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Which means that the transaction desired to be effected by the document will be inoperative so far as the immovable property is concerned.
Thus, as the sale deed in question has not been registered, it does not affect any immovable property comprised therein, i.e. the said commercial property. However, you may execute a gift deed in favour of your daughter, if a period of 30 years have elapsed since you have been in possession of the said commercial property and no claim can be raised against you, as the maximum period of time within which a person can file a suit in a competent court with respect to an immovable property, as per the provisions of the Limitation Act, 1963, is a period of 30 years. Thus, since we are assuming that you have been in possession of the said commercial property for more than a period of 30 years, no claim can be raised against you.
For the gift to be valid it must be made by you voluntarily, without any exchange of money and it needs to be accepted by your daughter. It is to be noted that the said gift deed is to be executed by you and your daughter and attested by two attesting witnesses.
Further in the event the original vendor (i.e. the person who sold you the said commercial property) is alive it would be advisable, to execute an agreement with him stating that neither he nor anyone claiming through him has any right, title and interest in the said commercial property and that you are the sole owner of the same. You may annex the said agreement to the gift deed. It is also to be noted that stamp duty is payable on a gift deed in accordance with the provisions of the Stamp Act applicable to the state within which the said commercial property is situated. A gift deed is a compulsorily registerable document in accordance as per section 17 of the Registration Act.
Lastly, it is to be noted that the title of your daughter will always be subject to the aforementioned lacuna (i.e. the defect in your title due to non-registration of the sale deed).

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Sale deed not mandatory if property bought from builder - Livemint

What is the difference between an agreement for sale and a sale deed? I bought an apartment in Mumbai and have entered into an agreement for sale which is duly registered. Should we make a sale deed after full payment? —Jigar Shah

We are assuming that you have purchased the apartment under the provisions of the Maharashtra Ownership of Flats (regulation of the promotion of construction, sale, management and transfer) Act, 1970, (MOFA) and that you have paid 20% or more of the purchase consideration till date and that you have executed a MOFA agreement—an agreement for sale with the builder with respect to the said apartment. Further we are assuming that the said agreement for sale is adequately stamped in accordance with the relevant article contained in schedule I of the Maharashtra Stamp Act, 1958, and that the agreement for sale is registered with the applicable office of the sub-registrar of assurances.

Section 4 of MOFA requires a builder to execute an agreement for sale containing inter-alia the terms as prescribed therein with its purchasers upon receipt of consideration as stated therein with respect to the apartment agreed to be sold by the builder. Thus there is no requirement to execute a sale deed, once the agreement for sale has been executed. However, it is to be noted that in the event that you have paid only part consideration to the builder while executing the agreement for sale, you must ensure that upon payment of the balance consideration the builder gives you receipts. If you pay the balance consideration in instalments, then you must ensure that the builder issues you a receipt for every instalment.

Further you must ensure that on completion of the construction of the building and upon such number of persons as prescribed under section 10 of MOFA having purchased the flats, the builder takes steps to constitute a society or any other organization as contemplated under MOFA agreement. You must also ensure that upon formation of such organization, the builder duly executes a deed of conveyance within such time as contemplated under the MOFA agreement and if not prescribed therein then the time as prescribed under section 11 of MOFA in favour of the organization formed conveying the land on which the said building has been constructed along with the building in favour of the organization. It is also very critical not to take possession of the said apartment without an occupation certificate being obtained by the builder. You must also ensure that upon formation of the society, a share certificate is issued to you by the society stating that you are the owner of a certain number of shares. The said share certificate is to be signed by the chairman of the newly formed society.

Please note that it is only in this situation, that is upon purchase of a flat directly from the builder by executing a MOFA agreement, in accordance with the provisions of MOFA that it is not necessary for you to execute a sale deed subsequent to the execution of the MOFA agreement.

In the event that you are not purchasing a property from a builder, and are purchasing the property from a prior owner of the flat, that is either an individual or a company, it is essential that you execute a deed of transfer (or a sale deed) after the execution of an agreement for sale by the transferee and the builder. This is imperative as the deed of transfer will be your title document. In that situation, it is also advisable that you pay the full stamp duty on the deed of transfer and get the same registered with the office of the sub-registrar of assurances. It is also imperative to inter-alia take custody of the share certificates given to the owner (transferor) of the apartment and the original agreement for sale executed by the transferor and the builder and a no objection certificate from the society in which the said apartment is situated for the sale of the apartment to you and to admit you as a member of the society.

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Probate

What is it?

It is a copy of the will of a deceased person which has been certified under the seal of a court having the competent jurisdiction. The jurisdiction to probate a will lies concurrently with high courts and district courts. Once a probate is granted by the competent court, the will is validated and can be then executed by the executor. A probate is granted to the executor implied in the will, if there is no executor then the court grants a probate on the beneficiary’s demand and appoints an executor to execute the will on behalf of the beneficiaries. It cannot be granted to any person who is a minor or is of unsound mind, nor to any association of individuals unless it is a company that satisfies the conditions that may be prescribed by state government rules.

The Process

The beneficiary or the executor has to approach the court within whose jurisdiction the matter falls by filing a petition. The petition generally mentions the relation of the petitioner with the deceased, the time of the testator’s death, the assets he has left behind and the details of legal heirs and other beneficiaries. The petition is supported by attaching a copy of the last will that is to be probated, the death certificate of the testator and a supporting affidavit of at least one witness. On receipt of the petition, the court issues a notice to the relatives of the testator so that they can file objections, if any. A general notice is also published in a newspaper.

If the will is not contested, then the petitioner has to prove that the testator is dead by producing a death certificate and that the will is valid. The court then grants the probate.

Is it compulsory?

Succession law is included in the state list in the Indian constitution. Thus, the regulations pertaining to a probate are different in every state. A probate is not compulsory in all states.
For Hindus, Buddhists, Sikhs and Jains, a probate is compulsory if the will is made in West Bengal, Bihar, Jharkhand, Orissa and Assam and territories subject to the ordinary original civil jurisdiction of Bombay and Madras high courts. It is also applicable to Parsis if immoveable property is situated within the limits of the high courts of Calcutta, Madras and Bombay. If the will is made outside these regions but bequeaths immoveable property, which is located in any of the specified places, then a probate is compulsory. For a will made outside these places, a probate is not required even if it includes immoveable assets as long as the property is not located in any of the specified regions.

What it costs?

Apart from the lawyers’ fee, the courts levy 2-8% of the value of the assets. However, the upper limit is usually fixed. For instance, in the Bombay high court, the maximum fees is Rs75,000. A simple uncontested will takes about five to seven months to be probated.

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Registering a will and obtaining a probate are mutually exclusive

What is the maximum time limit for getting a probate and the chances of its success if the will is registered? Is it necessary to call witnesses of the registered will? If the distribution of assets is already made as per a registered will, is it necessary to get a probate as the same may involve stamp duty and other expenses? If a registered will says the Hindu Undivided Family (HUF) be dissolved and be distributed among coparceners who are also members, can married daughters, not shown as members in bank records, lay claim?
—B. Kumar

There is no time limit for applying for a probate or obtaining the probate. A registered will merely certifies the authenticity of the will. Against this, a probate is granted to an executor appointed in the will for the purpose of determining whether the will of a testator was duly executed and attested and whether at the time of such execution, the testator was of sound mind and was capable of comprehending the nature and extent of his actions, and establishes the genuineness of the will. So, registration of a will and obtaining a probate are mutually exclusive and your chances of getting a probate do not increase by presenting a registered will for obtaining probate.

Courts have wide powers in matters of grant of probate. If a will is challenged or disputed, the court would generally call the witnesses of a will, irrespective of whether it is registered or not, though it is not absolutely necessary to do so.

If a will has been administered, i.e. if the assets of the deceased person who made the will have already been distributed as per the will, it is not always necessary to get a probate. However, if a probate is obtained even after the distribution of assets as per the will, the acts of the executor of the will in respect of the distribution will be validated. Obtaining a probate will attract payment of court fees and not stamp duty.
One of the things to bear in mind in respect of probate proceedings is to ensure that all the evidence needed to prove the will in court is in place and that the witnesses of the will are able to testify with respect to the execution and attestation of the will. It is important to note that the court would generally also examine the witnesses to prove the soundness of the mind of the testator at the time of executing the will and the circumstances in which the will was made and executed.

Effective 9 September 2005, all daughters of coparceners in an HUF shall be coparceners in their father’s HUF if their father was alive at the time the amending provisions of the Hindu Succession Act came into force. However, if the testamentary disposition or distribution or partition of the assets of the HUF has been effected before 20 December 2004, the same shall not be affected by the amendment. So, even if the names of the daughters, married or otherwise, do not appear in the bank records, they will by birth be entitled to and can lay claim on their father’s HUF property if their father was alive at the time of the amendment of the Act in 2005.

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For property situated in Mumbai, probate of will must be obtained - Livemint

My father acquired a freehold plot and constructed a three-storey building on it. He passed away without a will. He is survived by his wife, a daughter who is married and two sons, including me. My siblings and I have surrendered our rights to the property in the favour of our mother. The property is registered in our mother’s name and accordingly the mutation is done. My mother has made a registered will. As per the will, the property is to be distributed among her children. Recently my family has disowned my son and his wife. In the present circumstances, does my son or his legal heirs have any right over this property as he may claim it as ancestral property being self-acquired by his grandfather? I have been told that since the property is already mutated in my mother’s name, he has no rights over it. -Akshay Mohan Kapoor

The property acquired by your father and the building constructed would be considered as ancestral property. Being a coparcener, your son would have been entitled to a share in this property (your father’s). If your son was a major at the time of relinquishment, you and your siblings could not have relinquished the entire property (including your son’s share) in favour of your mother without the son’s consent. Your son would thus have a claim in the property to the extent of his share in the property that had been relinquished by you and your siblings; your son can challenge the relinquishment and also the mutation in favour of your mother. This position will not be affected by the subsequent act of disowning him and his wife. In other words, even after being disowned, your son can claim his share.
In case of immovable property (in Mumbai) bequeathed by a testator, will it be necessary to obtain probate of a will?
-Niharika Gandhi
As per the provisions of section 213 of the Indian Succession Act, 1925, a probate for a will is required to be obtained. The said section inter alia requires that “no right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed”. Further, as per the Act, the above-mentioned provision is applicable to any Hindu, Buddhist, Sikh or Jain inter alia where such wills are made in Mumbai and if made outside of Mumbai, where such wills relate to immovable property situated in Mumbai within those limits.
Since the immovable property in question is located in Mumbai, it would be necessary to obtain a probate in respect of the will to enable the executor and the legatee to be able to deal with the same.

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Probate of will is needed to establish right on inherited property in court

My mother and elder brother co-owned a flat in Mumbai. My mother wanted her share to be transferred to me and so she wrote a will and got it registered. My brother himself gave the nomination forms declaring the same to the society where the flat is located. Now that my mother has passed away, my brother wants to take over the whole property. He doesn’t believe that the will is genuine. Is probating the will the only way to go about it? Wouldn’t probating give a heads up to my brother to prepare a case against me? I have been advised to start on the probate process but due to the fact that it can take two-four years and around Rs1.5 lakh, I want to make sure I am doing the right thing. - Jitendra Desai.

Section 213 (1) of the Indian Succession Act, 1925, inter alia states that a legatee’s (a person who inherits under a will) right to property bequeathed in a will cannot be established in a court, unless a court of competent jurisdiction in India has granted a probate of the will under which the right is claimed or letters of administration with the will annexed thereto have been obtained.
In the present case, it is imperative that you get your mother’s will probated as without the same your right as a legatee will not be established. In the event that your mother has not appointed an executor under her will or the person appointed as an executor expired before your mother or where the executor refuses to act as such, then you would have to apply for letters of administration.
The fact that your brother has declared in the nomination forms submitted to the society that he has only a 50% share in the flat is not binding as in this case the property is disputed.
Grant of a probate establishes conclusively the legal character of the person to whom it was granted. It also conclusively decides that the will was genuine and validly executed and that the testator has the testamentary capacity to execute the will (was of sound mind and was not forced to make the will).
Therefore, obtaining a probate or, if required, letters of administration is the only way by which you would be able to establish your right under a will. If your brother wants to contest the will, he will have to enter a caveat and file an affidavit in support of the caveat.
Thus you have been advised correctly to go ahead with the process of obtaining a probate. The process of obtaining a probate normally takes six-eight months. However, if anyone disputes the process or challenges the will, then the petition will be converted into a suit and will take much longer, even a few years. Court fees would have to be paid on the probate petition and this would depend on the value of the property that has been set out in the will. The maximum court fees payable in Mumbai is Rs75,000.

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Get probate or NOC from other legal heirs to avoid disputes

 My father had executed a will in my favour stating, inter alia, that if any movable or immovable property and any liability that may be found anywhere shall belong to me and authorized me to settle and appropriate the same and got it registered with a sub-registrar in a union territory (UT). However, he forgot to appoint a nominee for shares of a few companies held by him in physical form and didn’t mention in the will too. For his shares in demat form, he made me a nominee and mentioned my ownership on these in the will. During the transmission process, a company has asked for a probate of will or no-objection from the legal heirs and is not ready to listen to my explanation that in the UT, where the will has been executed and registered, there’s no legal requirement of getting it probated. Since the value of shares is under Rs 50,000, is the company justified in asking for these documents. How can I get these transmitted in my favour?
—Suman

It appears from your query that while your father has specifically bequeathed the shares that were held by him in de-materialized form to you, he has not specifically bequeathed to you the shares that were held by him in physical form.
If your father’s will contains a residuary clause (i.e. a clause that deals with all his left-over property other than that which has been specifically bequeathed to identified or named persons), the said physical shares will be transmitted in accordance with what has been stated in the residuary clause.
In the eventuality that the residuary clause states that the residue of the property (i.e the property that has not been specifically mentioned and bequeathed in the will) is to be divided equally among all the heirs or in a particular ratio or is bequeathed to another legatee, then the said physical shares will have to be dealt with in that particular manner. If the residuary clause states that the residue of the property is to be bequeathed to you, you shall be entitled to the said shares which are in physical form.
The company is asking for a probate of the will or a no-objection certificate (NOC) from the legal heirs of your father to ascertain that other legal heirs of your father are not entitled to the said physical shares and as a precaution to protect the company against any future claims (in particular, in the eventuality that the residuary clause does not solely entitle you to inherit the residue of the property). A person wishing to challenge the grant of a probate may do so once a probate petition has been made in the appropriate court and the court may, if it thinks fit, convert the petition into a suit.
It may be noted that it would be easier and a shorter process for you to obtain a NOC from other legal heirs of your father and you would not be required to pay any court fees for the same.

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It’s advisable to obtain probate if said will is contested - Livemint

I am the beneficiary and executor of my aunt’s will. She has left her property to me in Pune. I have not applied for a probate as my lawyer says that being the only beneficiary I do not need a probate. However, the housing society is asking for a probate before name change as they have received a letter from my cousin claiming that my aunt’s will submitted by me is a fake. If I die then do my children have to obtain probate for my aunt’s will since they are not named as executors in the will? Can the property be transferred to my name without a probated will? —Katya

While answering this query, we are assuming that your aunt was a Parsi at the time of her death and was governed by the provisions of the Indian Succession Act, 1925. We are also assuming that you have been appointed as the sole executor under your aunt’s will.
Section 213(1) of the Act inter alia states that the right of a legatee (a person who inherits under a will) to property bequeathed under a will can’t be established in a court unless a court of competent jurisdiction in India has granted a probate of the will under which the right is claimed or letters of administration with the will annexed thereto have been obtained. However, section 213 (2) states that the said section is not applicable to the wills executed by Mohammedans, Hindus, Buddhists, Sikhs and Jains except in certain circumstances mentioned therein. Further, section 213 (2) states that in case of a Parsi dying after the commencement of the Act, a probate is necessary if the will in question is made or the property bequeathed under the will is situated within the “ordinary original civil jurisdiction” of the Bombay high court. Since Pune does not come within the said jurisdiction, it is not necessary for you to obtain a probate of your aunt’s will.
While it is not mandatory to obtain a probate of your aunt’s will, it would still be advisable for you to obtain a probate since your cousin is contesting the will.
To obtain a probate of a will, you will have to file a probate petition in a court of competent jurisdiction. It takes about 8-10 months to obtain a probate if the petition is not contested by any person. At the time of filing the petition, court fees will have to be paid. It is to be noted that if the probate petition filed by you is contested by your cousin (which can be done by filing a caveat in your probate petition) your petition will be converted into a testamentary suit and the genuineness of your aunt’s will, will then be adjudicated upon.
It is to be noted that as per section 222 of the Act, a probate shall only be granted to an executor of a will. Section 226 of the Act specifically provides that on the demise of an executor, representation would survive to the surviving executor or executors as the case may be.
Thus, on reading sections 222 with 226 of the Act it is clear that probate petitions are essentially at the instance of the executors named in the will and can survive till the executors survive. The moment the sole executor or all the executors die, the question of the proceeding being kept alive does not arise at all as there would be no occasion in such a case to grant any probate. Such a proceeding would die a natural death due to non-survival of any executor.
If you pass away prior to filing the probate petition, your children may apply for letters of administration with a will annexed to it. If your petition is uncontested and you pass away before the court grants you a probate of your aunt’s will, your children may intervene in the probate petition and amend the same so as to apply for letters of administration with a will annexed to it.
If your petition is contested and is converted into a testamentary suit and you pass away during the pendency of the suit, your children will be brought on record as your legal heirs. However, the prayers/release will have to be amended by your children so as to apply for letters of administration with will annexed, as your children have not been appointed as executors under your aunt’s will. Your children will be granted letters of administration with the will annexed to it and shall be appointed as administrators of your aunt’s estate.

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Probate to be granted only to an executor named in the will

My husband died of a heart attack within two years of my marriage. My husband was the only son and his two elder sisters got married before our marriage and are settled in Mumbai. The only survivor is my 75-year-old father-in-law. A month before my husband died, he gave all his property worth about Rs.5 crore to his father through his will, giving me (wife) nothing. The will has been submitted in the Pune civil court for a probate. I have challenged the will. What will be the fate of the case if my father-in-law dies before the case reaches a conclusion? Can you cite some related laws that can be helpful? Six months back, I also filed a case under Hindu Succession Act, claiming that I am the only class I heir of my husband.
— Priti

For answering this query, we are assuming that your husband’s will was executed in Pune, any immovable property that is the subject matter of such will is situated in Pune and that your father-in-law has been appointed as the executor under the will. We are also assuming that since you have challenged the validity of your husband’s alleged will, the probate petition filed by your father-in-law has been converted into a testamentary suit.
Section 213(1) read with section 57 of the Indian Succession Act, 1925 inter alia states that the right of a person to property inherited under a will cannot be established unless a court of competent jurisdiction in India has granted a probate of the will or letters of administration with the will annexed thereto have been obtained. However, section 213 applies to wills made by Hindus, Buddhists, Sikhs or Jains for wills made on or after 1 September 1870 within the territories which at the said date (being 1 September 1870) were subject to the lieutenant general of Bengal or within the local limits of the ordinary original civil jurisdiction of the high courts of judicature at Madras and Bombay.
As we are assuming that your husband’s will had been executed in Pune, under law it is not necessary to obtain a probate of his will since Pune does not fall within the ordinary original civil jurisdiction of the high court of judicature at Bombay. Thus, as per succession laws applicable to Hindus, your husband’s property automatically vests in your father-in-law on the demise of your husband due to the existence and contents of the alleged will (as it is not necessary to obtain a probate of the will to establish his right as an executor or beneficiary).
As per section 222, a probate shall only be granted to an executor of a will. Section 226 specifically provides that on the demise of an executor, representation would survive to the surviving executor or executors, as the case may be. Thus on reading section 222 with section 226, it is clear that probate petitions are essentially at the instance of the executors named in the will and can survive till the last of the executors survive.
The moment the sole executor or all the executors die, the question of the proceeding being kept alive does not arise as there would be no occasion in such a case to grant any probate. Such a proceeding would die a natural death due to the non-survival of any executor. Thus, if your father-in-law passes away before the conclusion of the suit, the suit will die its natural death as a probate can only be granted to an executor. But since your husband’s property has already vested in your father-in-law on your husband’s demise under your husband’s alleged will, that property will be treated as the property of your father-in-law on his demise and will devolve in accordance with your father-in-law’s will (if any) and in the absence of such will, in accordance with the rules of intestate succession set out in the Hindu Succession Act, 1956.
It would be advisable for you to obtain interim relief from the Pune civil court, restraining your father-in-law or his heirs, in the event of his demise before the conclusion of the testamentary suit (i.e. the probate petition converted into a testamentary suit), from parting with your husband’s property so as to safeguard your interests.
With regard to your queries on case laws, proving that the purported will of your husband is forged or executed under coercion or undue influence or not in exercise of his free will is a matter of fact and cannot be ascertained by case laws. In order to pursue the said contention, you will have to produce evidence to show that the same is a forged will and that the estate of your husband should devolve as per intestate succession.

Source:Livemint

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