My father died in the UK last November leaving his estate to myself and my sister-he only had a UK will. When grandmother died she left 50% of a property to my father and the other 50% to his nephew(he lives there). In her will she stated that if my father sold the property, he would not benefit as the proceeds would be shared amongst his sisters. What we are trying to establish is,does my grandmothers wishes mean the 50% of the property now passes to her daughters or is it now considered part of my fathers estate, becoming part of our inheritance? This situation needs to be clarified in order for us to apply for probate.
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Your father was bequeathed 50 per cent of property by grandmother will
2) only if your father sold the properties would your father not have any share
3) on father demise 50 per cent of share inherited by him from grandmother would devolve on you and your sister
4) apply for probate of will
You have not stated that whether the property is in India or in UK.
Assuming the property is in India for which a Will was made in UK.
As Indians increasingly go global whilst retaining assets in India, there is a greater need to understand probate issues in India.
To obtain probate in India, the executors must file a petition with the original Will annexed in the court having jurisdiction in India.
The Will needs to be probated under the applicable law. It is a usual practice to state the law governing the Will especially when it covers assets in different countries. By granting Probate, the competent Court of any jurisdiction gives recognition to authenticity of the Will. Enforcement of foreign probates in India is governed by provisions of Indian Civil Procedure Code and Indian Succession Act, 1925. As a general rule once probate is granted in foreign jurisdiction, Indian Courts will refrain from taking evidence to examine validity of the Will and should grant permission in the form of ancillary probate. This means that Indian court will not entertain any objections to authenticity of the foreign Will.In practice the competent Indian court will grant letter of administration with a copy of the Will attached.
Thus after getting probate of will the will can be executed/enforced by the executor or the beneficiaries.
Your question is:
What we are trying to establish is,does my grandmothers wishes mean the 50% of the property now passes to her daughters or is it now considered part of my fathers estate, becoming part of our inheritance?
You can very well proceed for seeking probate of the will, because your father has not sold the property till his death and thus it becomes his own property, now as legal heirs to your father you can inherit the properties left behind including this property on which he has been bequeathed with a share of 50%.
Without perusal of the will there is nothing that can be said. Be that as it may, if the grandmother bequeathed her 50% share absolutely to your father then on the demise of your father this share devolved through succession on his class 1 heirs, unless he made a consolidated will of his self acquired property and the one he had inherited from his mother. So consult a lawyer with a copy of the will to obtain an unambiguous opinion.
