quesBrother made another Will of father when father was mentally ill.

My father made a will in my name for a flat owned by him. He was suffering from Dementia in his last year. He was living during this time with my brother who got a new will made in his favour when my father was ill. I have not seen the new will. What should I do? Also there was another flat in my mother's name which was willed in my father's favour. He willed it in my brother's name without getting it probate. Since both my parents are dead,what should I do since my brother is not willing to give anything to me and has keys of both the flats.

  • ansWhen your father made a Will in your favour with respect to a flat that flat became yours.
    Subsequently another Will made in favour of your brother, the said Will will be taken as  the last and final Will of your father and whatever has been recorded will be followed but probate has to be filed before court.

    You should have demanded to see the said Will at the death of your father however you and your brother have an equal right to the properties unless he shows something to the contrary.

    You may put relatives in between and try taking out the copy so that the truth can come forward.

    As per the mothers property Willed in your father's favour he became the owner, subsequent Will favour of your brother with respect to said property could be done through probate and if the same not so done you can challenge the same before court.

    Also at that time the fact of your father having dimentia can be raised

     

  • ansImmediately file a Suit for Declaration and Partition of the Flat in addition to challenging the authenticity of the new will. Also you will have to get a stay from the Court so that your brother cannot create any third party interests in the property.

    Advocate Arjun Vinod Bobde

      Supreme Court of India, Delhi

  • anssir, in your situation a suit for partition appears to be a viable solution. The details and other modalities can be explained through a personal conference with a legal expert. An interim stay would be desirable to preclude your brother from selling / transferring the properties pending the suit

    Advocate Rajat Joseph

      Nizamuddin East, Delhi

  • ansThank you for your query
    When your father made a will in your favour with respect to a flat that flat became yours
    Subsequently another will made in favour of your brother, the said will will be taken as the last and final will of your father and whatever has been recorded will be followed but probate has to be filed before court
    You should have demanded to see the said will at the death of your father however you and your brother have an equal right to the properties unless he shows something to the contrary
    You may put relatives in between and try taking out the copy so that the truth can come forward
    As per the mothers property willed in your father's favour he became the owner , subsequent will favour of your brother with respect to said property could be done through probate and if the same not so done you can challenge the same before court
    Also at that time the fact of your father having dimentia can be raised

    Advocate Amitesh Singh Bakshi

      Delhi High Court, Delhi

  • Disclaimer: The above query and its response is NOT a legal opinion in any way whatsoever as this is based on the information shared by the person posting the query at LawRato.com and has been responded by one of the Property Lawyers at LawRato.com to address the specific facts and details. You may post your specific query based on your facts and details to get a response from one of the Lawyers at LawRato.com or book a Detailed Consultation with a Lawyer of your choice to address your query in detail.
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