Will proved in court. Can the property in Will be sold w/o problems?


If probate decision on an unregistered holograph WILL is taken once in our (we are the legatees) favor i.e., the WILL is proved completely, can we sell the property bequeathed in the WILL without any obstacles? The property is in Bangalore, Karnataka.

 

Does ‘judgement in rem’ means that after the probate decision in our favor, the WILL and the decision cannot be challenged on any grounds?

 

Answer

 

We will have to examine the Will first and then we can provide you our opinion. We will have to see that what is given by your father in the Will. If it is the whole house, then yes, you will have to seek consent of your brother staying in that house and thereafter sell your portion by executing a Sale Deed.

 

Now, the challenging question which comes before you is that how will you define your portion and thus for the same you have two options:

 

1. Firstly, amicably decide with your brother your share of portion.

 

2. In case the above mentioned point is not agreeable, then you will have to seek partition which is only possible when you file a Suit for Partition.

 

Therefore, detailed legal opinion can be given only after examining the Will. 

 

With respect to you second question also, whether does ‘judgement in rem’ means that after the probate decision in our favor, the WILL and the decision cannot be challenged on any grounds? The answer for the same is "A judgment in rem is an adjudication, pronounced upon the status of some particular subject-matter, by a tribunal having competent authority for that purpose.It is generally said to be a judgment declaratory of the status of some subject-matter, whether this be a person or a thing. Thus, the probate of a Will fixes the status of the document as a will.  Hence the Probate order confirms the Will to be valid.

 

Now, whether you can challenge the Probate order or not is a separate question and we can provide you the legal opinion only after examining the copy of Probate order.   

 


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