Can a Will which is not probated be challenged
12-Jan-2023 (In Wills / Trusts Law)
I have one younger brother and one older sister. My parents have expired. I stay separately with my family (since 1984) and my sister is married (1978). My father in the year 1984/85 had made a will wherein he had given all his property to my younger brother. I was told about all this in the year 2014 by my brother. As my brother was staying in the same house it was ok for me. In April/May 2014 my brother informed me that he has sold the said property for Rs.127 lacs and since the will was in his name he is not ready to share any amount with us. I had talked with him and he was ready to pay me Rs. 8.5 lacs within a year to which I agreed. He has already paid Rs. 5.5 lacs but within two years. He was to pay Rs.3.0 lacs by Dec.2017. But he recently told me that he will pay Rs. 1.5 lacs by March 2018 and Rs. 1.5 lacs by Aug.2019. This is not acceptable. I request you to guide me as to what should be my response. Should I challenge him l as the will is not probated? I am a Hindu.
First of all, a Will which is not probated has no sanctity of law and legal value. I don't know as to on what basis the property belonging to your father came to be sold by your brother. Unless I see all the documents including ownership documents of your father, Will, registered sale deed executed by your brother in favour of third party, etc., I am unable to assist you properly. So first arrange for all documents as aforesaid.
Under Section 219 of the Indian Succession Act, 1925, if the deceased has died intestate and was not a person belonging to any of the classes referred to in Section 218 (i.e, Hindu, Mohammedan, Buddhist, Sikh or Jain or an exempted person), those who are connected with him either by marriage or by consanguinity are entitled to obtain Letters of Administration of his estate and effects in the order and according to the rules framed in this section.
Under Section 212(2) of the Indian Succession Act, 1925, Hindus, Muslims, etc. are not bound to apply for letters of administration (Probate). It is optional and not mandatory for these persons to seek probate of the Will.
Therefore it does not matter if the will is not probated especially if you are a Hindu.
I have some queries:
1. When he promised to pay you Rs.8.5 Lacs, did you get his words/commitment/agreement in writing? In case you got it in writing, then you can challenge him on the grounds of breach of trust under a written contract.
2. Even if he has orally agreed to pay you the remaining amount, then also under law oral agreements are bound by the same law of written contracts.
3. You should send him a personal letter asking him to remind you to pay the agreed amount.
4. In the case, he doesn't reply, you can approach a lawyer and send him a legal notice.
Under Section 212(2) of the Indian Succession Act, 1925, Hindus, Muslims, etc. are not bound to apply for letters of administration (Probate). It is optional and not mandatory for these persons to seek probate of the Will.
Therefore it does not matter if the will is not probated especially if you are a Hindu.
I have some queries:
1. When he promised to pay you Rs.8.5 Lacs, did you get his words/commitment/agreement in writing? In case you got it in writing, then you can challenge him on the grounds of breach of trust under a written contract.
2. Even if he has orally agreed to pay you the remaining amount, then also under law oral agreements are bound by the same law of written contracts.
3. You should send him a personal letter asking him to remind you to pay the agreed amount.
4. In the case, he doesn't reply, you can approach a lawyer and send him a legal notice.
You can challenge will, when your brother will go to probate the will.
You can challenge will, when your brother will go to probate the will.
You can challenge will, when your brother will go to probate the will.
You can challenge will, when your brother will go to probate the will.
You can challenge will, when your brother will go to probate the will.
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 Divorce Lawyers at lawrato.com to address the specific facts and details.
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