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.
source: www.livemint.com
—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.
source: www.livemint.com
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