The property is in Tamil Nadu India. My father acquired ( not inherited ) this property. 30 years back, he wrote a will stating, my mother can enjoy the property, but can not sell or give away the property, and after her demise I should inherit the property and registered the will. After my father's death, my mother lived in that property for 25 years. While she was living there, I moved to USA. During that period, the patta name was changed from my father's name to my mother's name. While she was living in that house, my elder sister also lived with her and taking care of her. My younger sister, took my mother to the Registrar office, based on the patta changed to my mother's name, made my uneducated mother to write a will her stating the property should come to her possession after my mother's death and registered the will. After my mother's death, my younger sister made my elder sister to evict the house by locking it. As I said, I am in USA. Questions: 1. Is my mother's will valid? 2. What should I do now? 3. An attorney suggested me to validate my father's will by filing in the court. Is that enough or something else I need to do. ? 4. How to reoccupy the property? Thanks for your answers.
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You need to challenge that will now in court on basis of fraud. First send legal notice to sister and proceed with filing suit if she disagree on your terms.
Yes you can rely on fathers will in the present suit but first you need to challenge that fraudulent will.
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1. Your mother's WILL is not legally valid and binding on you, as she was not the owner of the property and she had only lifeinterest, as per your father's WILL.
2. You have to send a legal notice to your sister who has occupied the property, through a Lawyer asking her to vacate the property forthwith and hand it over to you physically, based on your father's WILL.
3. As rightly suggested by your Attorney, probate your father's WILL by approaching the jurisdictional competent Court.
4. Obtain jurisdictional Court order in your favour for declaration and separate possession of the property by metes and bounds.
Will is not valid
2) file suit for declaration that you are absolute owner of property on basis of father will
3) seek injunction restraining sale of property by sister
4) you can in alternative file for probate of will
1. Your mother's will is not valid since she was not the title holder of the said property.
2. & 3. You can file an application for probate of the will (though it is not mandatory for the Christians) to get the Courts seal that you are its owner or file a declaratory suit before the District Court praying for a declaration that you are the title holder of the said property as per law and also declaring that the will executed/registered by your mother is invalid.
4. While filing the above Declaratory Suit, you also should file an application under Order 39 Rule 1 & 2 praying for an order restraining your younger sister to enter in to the said property till the disposal of the suit.
5. Once the suit is disposed of in your favour, you can occupy the house with police help.
6. Another shortcut way is to lodge a police complaint against your younger sister for illegally making a document by influencing/forcing your illiterate mother which is invalid and illegally evicting your elder sister whom you have authorised to stay in that house being its present title holder.
7. If police does not act, you can file a Writ Petition against police inaction before the High Court making your younger sister the private party praying for directing the police to act as per law.
1. No, as your father was having only right to transfer the property being the owner of the property , and further as your father has already write a WILL with the condition that your mother having only residential right and further after her death this property will be devolved upon you.
2. You should apply for getting probate this WILL from the court.
3. Probate the WILL
4. After getting probate the WILL , you will declared the legal owner of the property left by your father.
1. It is not valid as she had no right to alienate the property.
2. Challenge the Will at the district court where the property lies.
3. Your father's Will shall be the most important evidence to set aside your mother's Will.
4. In your petition, pray for eviction.
1. FIRSTLY file Probate Proceedings of Father's WILL, in Court & obtain Probate Decree, in your favor.
2. SECONDLY, file Eviction Suit against Sister in local Civil Court.
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The question is not about the validity of the Will.
It is about the maintainability of the bequest made in the Will.
If your mother did not have title to the property then the bequest made in the Will to transfer the property to your particular sister can be challenged ion the court of law based on the contents of the Will made by your father.
For this you have to file a suit for partition claiming your share in the property with separate possession.
Then your sister would appear before court accompanied by the controversial Will in her favor defending her interests in the property.
You may have to challenge her claim properly as per the facts that contended in your father's Will and the background details.
Dear client,
1) no
2) you can send a legal notice to your sister intimating the mistake she has committed and to change it
3) it is enough
4) get probation of the will
Thank you
Thank you for all your answers. I have some additional questions. Kindly let me know. 1. Since I am living in USA, is Power of Attorney mandatory? If not, how to proceed? 2. I understood from you that I need to probate. How that differs from declaration? Are they same? (One Attorney suggested me to go for declaration, not probation) To give further insight into my case, which I failed to write in my initial submission, I wish to add this: After my father's death, my younger sister refused to evict or pay rent to my mother. My mother went to the court and the case was adjudicated in favor of my mother - evicting my younger sister from the property and pay for the cost. Once again, thanks for all your answers
You need to execute POA for filing case
2) POA should be attested before Indian consulate
3) probate is judicial proof that will is genuine
4) contact a local lawyer
1. If you have to file a suit challenging your mother's Will in India, you have to execute a specific PoA in favour of your relative or friend in India, authorizing him/her to do so on your behalf. The PoA has to be executed by you there, either sworn before a Notary or attested by the Indian Embassy/Consulate and sent to India. Within 3 months of its arrival here, it has to be adjudicated (meaning payment of stamp duty) by the registrar of assurances, before being filed in court in the proposed suit.
2. Probating the Will means proving it and certified by the court. The process applies to your father's Will. A declaration means declaring that you are entitled to a share of your father's estate, as one of his legal heirs.
1. Yes poa compulsory
2. No it's different. Probate is given by HC stating your will to be genuine.
File a eviction suit in the said matter
Dear client,
1) not mandatory
2) probation gets legal validity when you file it in the civil court while the declaration is just intimating about the will to other heirs.
Thank you
1. You can get the original POA sent to you by your lawyer which you shall have to take before the local Indian Consulate and append your signature on the POA before the appropriate officer of the Consulate who will notarise/attest your signature put on the POA. The attested POA shall have to be sent to the POA holder for arranging to put stamp of Rs.50/- by the local collector.
2. The Christians might evade getting probate but for Hindus, no will is valid without probate. The declaratory suit also will take time. In any case, you can file the Declaratory Suit and act as suggested in my earlier post.
1. What do you want to clarify by mentioning power of attorney?
If you are not able to participate or prosecute the proposed legal case, you may authorize a relative to do the same on your behalf during your absence.
2. In my opinion too, it would be better that you file a suit for declaration based on the recital of the Will through which your mother was entitled to life interest alone in the property.
Thank you everyone for your time and advices. I am trying to reach Mr. Swaminathan Neelakantan. No phone number listed. Sent a Linkdn connect. My address: [deleted]. Thanks again.
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You may fix an appointment with me through kaanoon.com for further consultation, please.
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No it's mandatory as prescribed earlier
If you don't get Mr. Neelakantan, you can contact me for assistance
- Since , there is a WILL left by your father , then it should probated to make the said WILL executable.
- You can contact any lawyer from this website