Is it true {that a} Will could be challenged on grounds of ‘interval of limitation’?
— Nikhil Desai
The Indian Limitation Act, 1963, doesn’t prescribe a interval inside which a petition for probate or letters of administration or succession certificates have to be made after the deceased’s dying. Due to this fact, the rule of three-year interval is just not strictly relevant to a petition for a grant of probate. The Supreme Courtroom has clarified this place of regulation that the best to use for probate is a steady proper that’s able to being exercised so long as the article of the belief exists or any a part of the belief if created, stays to be executed. Being a steady proper, the best could also be exercised at any time after the dying of the deceased, so long as the best to take action exists. The appropriate to use could subsequently accrue not essentially inside 3 years from the date of the deceased’s dying however when it turns into crucial to use, which can be any time after the dying of the deceased, be it after a number of years. The apex court docket has additionally emphasised the truth that although the three years interval is just not relevant. the delay in making the applying could rightly give trigger for suspicion and the better the delay, the stronger can be the suspicion within the minds of the competent court docket. And for a similar, it’s for the applicant to justify the delay.
My brother, who collectively owned a flat along with his spouse in Kolkata, died final 12 months. His spouse now lives there together with her sister. Do I have any declare on the flat?
— Identify withheld on request
We assume that your brother has handed away intestate i.e. and not using a Will and additional that he was a Hindu and private legal guidelines relevant to Hindus have been relevant to him on the time of his demise.
Due to this fact, as per the Hindu Succession Act, 1956, the property of the deceased would first devolve upon the category I heirs of the deceased and of their absence, class II heirs can be entitled to the property.
You’ve stated the flat was collectively owned by your brother and his spouse. We as soon as once more assume that each (the brother and his spouse) maintain equal undivided rights, title and curiosity within the flat and in such case the brother’s 50% undivided rights, title and curiosity within the flat can be devolved unto his class I heirs, which within the immediate case can be his spouse/the widow, supplied he has no kids or mom. As a brother, you’ll not have a declare if there are class I heirs of the deceased.
Aradhana Bhansali is accomplice, Rajani Associates.
Supply: Live Mint