Probate is not mandatory for Gujarat. It is only taken for establishing genuinity fpr your will
Is probate necessary?
My mother is the only child class I heir of her now deceased father and mother.My maternal grandmother passed away before my maternal grandfather 1984.He passed away in the year 2018.He had made a Will according to which all his moveable and immovable properties have been bequeathed to my mother.My grandfather’s brother son have filed a civil suit and have challenged the Will in that suit.All the moveable and immovable properties have been transferred in my mother‘s name as she is the only heir.Do we have to get the probate of the Will as it has been challenged or should we not get the probate?Can it harm us in the civil suit in future if we don’t get the probate of the Will?How do we prove that the Will is genuine?
Asked 3 years ago in Property Law
Religion: Hindu
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10 Answers
You should apply for probate
probate is judicial proof that will is genuine
you can prove the will by testimony of one of attesting witnesses
it will help your case as will has been probated
- As a sole legal heir mother is absolute inheritor to the properties irrespective of the will.
- Suit is filed challenging will. Contest that suit and get it dismissed. No need to file probate, getting the suit dismissed will establish the will.
- In the suit take multiple defences that will is genuine and she is entitled to properties as sole legal heir.
- After dismissal of suit, get the properties mutated in the name of mother producing decree obtained in the suit.
It is not mandatory to obtain probate of Will in Gujarat.
Your mother has already got all the properties transferred to her name enforcing the Will.
The grandfather's brother son is a third party hence his challenge to the enforcement of the will or seeking a share in your grandfather's self acquired property is not maintainable.
Besides the burden to prove his allegations against the Will or the transfer of property by your mother lies on him.
You can just participate in the case, challenge the same and get it dismissed on the basis of documentary evidences in your side and on merits.
We have got the properties mutated on her name on the basis of her being the sole heir.The mutation was also contested but the Deputy collector and the Collector ordered in our favour and as such her name was mutated.She was also nominee in all the bank accounts,FDs,PPF,NSS post account and share certificates of her father,so all the moveable properties have also been transferred in her name.We have not used the Will till now for anything.There was no need.He had an old locker in the SBI where there is no nominee and the SBI are asking us to get a probate for operation of that locker.The SBI have also been made party to the Special Civil Suit.The operation of locker and the challenge to the Will in the Civil Suit is the reason that we have applied for a probate of the Will yesterday.Will filing for the probate now harm our standing in the Civil Suit in any way?
Asked 3 years ago
it would not harm your case in any manner
since bank is not permitting you to operate the locker you need to obtain probate of will
Under Indian law probate of the will is not mandatory. But obtaining the probate of a will is advisable to avoid future complications on the distribution of property. If the will is probate then the legal heir can easily obtain the property ownership.
Your properties are doubly protected, through will and as legal heir, filing of will not affect you rights under civil suit.
Hi, There in no need to get probate of the Will. As the other side has already challenged the Will. Till disposal of the Civil Suit you can't claim the amount.
No it will not harm but it's not mandatory as per law.
If the bank locker account has been mentioned in the Will and if you want ot go by the bequest made in the Will to operate the bank locker account, you may proceed with the probate case, or if you do not want to bring this will into picture and want to proceed on the basis intestate succession then there is no necessity to get the probate for this purpose alone.
If you have already filed the probate petition then yo may decide based on the circumstances prevailing at your end.