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.
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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