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Business News/ Money / Ask-mint-money/  Probation of Will is not always compulsory

Probation of Will is not always compulsory

Once the Will is made, it can only be revoked during the person's lifetime

Once a Will is made, it can only be revoked during the person’s lifetime. Photo: iStockPremium
Once a Will is made, it can only be revoked during the person’s lifetime. Photo: iStock

My grandfather had three sons and three daughters. My father was the youngest. My grandfather’s property was transferred to his first son via a Will. After my uncle’s death, it was transferred to my aunt’s name. My grandfather’s surviving sons and daughters are claiming a share. Is that possible?

—Divya Shetty

Will is the legal declaration of a person’s intention, which he/she wishes to be performed after his/her death. Once the Will is made, it can only be revoked during the person’s lifetime.

A person is considered to have passed away intestate in respect of property (a) which he has not disposed under a Will, or (b) the disposition under the Will is not capable of taking effect (i.e. invalid bequest, illegal bequest etc).

As per the Indian Succession Act, 1925, the provisions of testamentary succession are applicable to the Will if (i) made by Hindu, Buddhist, Sikh or Jain on or after the first day of September, 1870, within the territories which at the date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; or (ii) made the Will outside those territories and limits, so far as relates to immovable property situated within those territories or limits. Further, no right as an 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. However, a probate is compulsorily required, only if the Will is made in any one of the aforesaid two cases.

Your grandfather bequeathed all his property (assuming it was self-acquired property) by Will to your eldest uncle. Upon demise of your grandfather, your eldest uncle has become the owner of the property by virtue of Will of your grandfather (we presume that the executor of your grandfather’s Will has received probate of Will from the court having competent jurisdiction, if it falls within either of the aforesaid two categories, and that your other uncles and aunts gave their consent for grant of probate).

After the demise of your eldest uncle, the property has passed on to your aunt (either your eldest uncle had bequeathed it to your aunt; or your eldest uncle died intestate and is survived by your aunt as his only legal heir).

Considering the above, especially the presumption that your uncles and aunts would have given their consent at the time of probate of your grandfather’s Will, they would have relinquished their rights in the property.

Aradhana Bhansali is partner, Rajani Associates

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Published: 31 Oct 2018, 10:04 AM IST
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