A mother of four died after passing most of her wealth to one child and the rest to two other children. One of the children has been brought out of his will, which was properly executed in the presence of the family doctor and chartered accountant and two family friends as witnesses.
Barring the child who has got the majority of the property, the other three are troubled by this division of property.
The executor of the will, for reasons unknown, insisted that the children settle their differences among themselves before going to him to file for probate. Later, the executor also tendered his resignation via a WhatsApp message, without naming a replacement.
Under the circumstances, can the principal beneficiary of the will apply for a letter of administration with the appropriate court without the signature of the remaining heirs or executor?
– Name withheld on request
Based on the facts told to us, we understand that the executor has shown a willingness to resign from his position because of differences between his siblings, children of the deceased.
However, a reluctant executor can resign in accordance with the rules of the competent court from where the children can demand probate or letter of administration attached to the will.
The tender of resignation by an appointed executor through WhatsApp messages is not in conformity with the provisions of the Indian Succession Act, 1925, which provides for a “form” of resignation of an executor by an executor.
Second, the executor’s insistence that the children settle their differences among themselves before going to the executor to file for probate is not valid in the eyes of the law as it would have the effect of diluting the deceased person’s last will and testament. .
Furthermore, if the will provides for a substitute executor instead of a reluctant executor, only the executor can name the substitute/alternative executor as stated in the will, and such executor or substitute executor can then apply for probate.
Third, as stated above that the resignation of the executor is not in accordance with the provision of law, the beneficiary of the will/legal heir who has bequeathed a large part of the property cannot apply for the letter of administration till then. unless the executor has relinquished. performance legitimately.
However, for the purposes of applying for letters of administration attached to the will, a suitable application may be made by the beneficiary in a competent court if the executor does not consent or does not submit the required “form” or take appropriate steps. Have to file for probate.
The service of probate application or letters of administration attached to the will must be officially served to all heirs within the context of the laws of succession applicable to the deceased, even if his legal heirs do not consent to sign the probate or letter of administration. Huh. ,
Aradhana Bhansali is a partner of Rajni Associates.