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Can mother execute a registered will

Shivendra Pratap Singh

Advocate

15/03/2022/ 11:02:02 PM

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Question: Can mother execute a registered will towards the property which she had received from my deceased father? My father died in the year 2021 and he has named my mother as the 100% owner of the existing house in the registered will. I have 4 older brothers and 1 sister. My brothers are not taking care of my mother. 

My mother wants to give me a major portion (75%) of the property and a small portion (25%) to my sister. And my mother wants to register in a will. My father’s property is a self acquired one. He was working in SBI and built the house. Question is, will she have rights to share the property only with 2 of her children. Can the registered will (written by mother) be challenged by my 4 elder brothers. If so what precautionary measure we need to take so that my brothers can’t challenge the will.

Asked from: Karnataka

However, the property was your father’s self acquired property but after execution of will, your mother became the real owner. Therefore, your mother can execute a registered will. Your father has devolved all self acquired property to his wife through a registered will. Consequently, there is no dispute towards the ownership of the property. 

Your mother is an absolute owner of these properties. Hence, she has an unfettered right to alienate through a registered will. Your elder brothers have no right to challenge the will if it has been executed by the free consent of your mother. 

Also Read: Can sister claim share in ancestral property?

Testator’s free consent and soundness of mind are mandatory conditions for a valid testamentary will. That mental condition must exist at the time of making the will. Exclusion of other legal heirs (your elder brothers) does not render that the will is invalid. In P. N. Balakrishna & Ors v. H. B. Bhavani Shankar & Ors AIR 2010 (NOC) 739 (KAR.); the Karnataka High Court has held that:

Merely because the testator excluded other heirs from Will. It cannot be said that Will is shrouded with suspicious circumstances. Will having executed in sound state of mind in presence of attestors hence, execution of Will cannot be doubted.

You should register the will in presence of two attestators. Explicitly state in the will, reasons for not giving property to three sons. Your mother should appear personally in the court of registrar at the time of registration of will. She should identify the property before the registrar. The registrar will enter the state of mind of the testator in the will. That entry shall form an evidence of free consent and sound mind of the testator.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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