Asked July 02, 2016

Dispute over a Will

  • 1 Answer

Hi, We are a Hindu family. Apart from me(son), my parents, 1 brother, 1 sister, our spouses and children form our family. My brother was living separately from 25 years and I was living with my parents. Due to some family problems, I also had to leave home 1 years back. My father died 10 days before and he has made a will. But my brother and my mother does not disclosed the will to me as they do not want to give anything to me and I am sure my father has given a property share to me as well. What can I do to get my share?

Answer 1

The main problem arising out of the current situation is related to obtaining the Will and determining your share in the property. There are two ways in which you can obtain the copy:

1) Though under the Registration Act[1] the registration of a Will is not compulsory. It is advisable and is generally done as it provides strong legal evidence about the validity of the Will. Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen. It is to be released only to the testator himself or, after his death, to an authorized person who produces the Death Certificate.

Thus you can obtain the copy of the Will if it is a registered one from the sub-registrar’s office of the district you reside in by producing your father’s death certificate.

2) On the death of the testator, an executor of the Will (executor is the legal representative for all purposes of a deceased person and all the property of a testator vests in him.) will apply for probate for the execution of the will.[2] A probate is a copy of a Will, certified by the court fpr the execution of the Will. A probate is to be treated as conclusive evidence of the genuineness of a Will. It is only after this that the Will comes into effect. If a probate is taken, a notice will has to be given to the beneficiaries of the particular will, so that they can file their necessary objections. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court grants probate.

Thus, when the executor (as appointed in the Will) applies for a probate, a notice would be given to you (if you are one of the heirs) and at that time you can ask for a copy of the Will from court, as then the Will becomes a matter of public record after being submitted to the court. Before the application for probate is initiated obtaining a copy of the Will either from your brother, mother, executor or the witnesses is a difficult task as they are under no obligation to disclose it to you. At the time when notice is given you can also present your objections to the court, which would be taken into account and only then the Will would be executed. Hence irrespective of them trying to hide the Will, in the end it would be disclosed as the probate is necessary for executing the Will.





[1]Section 18, Registration Act, 1908.


[2]Section 222, Indian Succession Act, 1925.


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