We are buying a resale property in Thane Maharashtra, which is in the name of 2 owners(wife and husband respectively), and the husband has passed away in 2016. Husband made a WILL in 2011 and is registered but NOT PROBATED. In the registered will, the deceased has mentioned ‘any moveable/immoveable property which may be hereby be acquired by me shall be taken by my wife’. Can this registered will be sufficient to register this property? Are all legal heirs mentioned in the will Required IN PERSON to execute the sale of agreement in sub registrars Office in Thane Maharashtra?
Has mutation been done on basis of registered will .?
2) better option is to apply for probate of will
3) other legal heirs should execute consent affidavit to relinquish their share in property
4) then transmission of property should be done in favour of wife
5) then only purchase the property
The will that is not probated is of no value. Get the property half share of property mutated in the name of wife and then obtain consent of all legal heirs on sale deed only after that it will be valid transaction.
firstly the husband has to specifically bequeath 50% of his share in the flat to his wife
‘any moveable/immoveable property which may be hereby be acquired by me shall be taken by my wife’.
the above clause will apply only if the flat was purchased in the joint names of husband and wife after making of the Will by the husband and while he was still alive
if the 50% is bequeathed to the wife [which can only be ascertained after looking into the Will] then all the other legal heirs of the husband will have to accept the Will and give their consent
as a caution it is advisable that the Will is probated
though thane area does not come within the jurisdiction of the Bombay High Court, it is still advisable that the Will be probated by filing a probate petition in the Bombay High Court
s.57 of the Indian Succession act says that if a Hindu dies within the jurisdiction of the Bombay high court or has left a property stated in his Will which is within such jurisdiction, then it compulsory to have the Will probated
thus even if the property in thane does not come within jurisdiction of the Bombay High Court, it is always better if the Will is probated
this is because if in future you go to sell this property and get a buyer who is funded by a bank, then the bank will raise objection if the probate of the Will is not there and will not sanction the loan of the buyer and you as the seller will in such an event not get proper buyers
To enforce the Will, it either has to be probated or the property to be mutated b y the revenue department in the name of the beneficiary on the basis of the NOC given by the other legal heirs of the deceased testator/owner.
If the property becomes her own property after completing the above formalities, then she can sell the property to the prospective buyer as an absolute owner with clear marketable title.
- Since, that property is in name of wife and husband , then legally they having equal share in the property .
- Further, after the demise of husband , his property would be devolved upon all legal heirs equally i.e. wife and children .
- However, as there is a registered WILL left by the husband in wifes favour , then legally she become the single owner of the entire property.
- Further, being the single owner of the property , she having her right to sell the self acquired property to you, and consent of other legal heirs not mandatory.
- However , if there is no objection , then other legal heirs can become witnesses of the sale deed in your favour.
