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Indian Law/Ancestral Property - Will and Legal Heir

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Question
Dear Sir, I am born and breed in Malaysia but my parents were from India and later became Malaysian citizens. My dad passed away in last Dec 2013. My dad’s family was in the midst of partitioning the ancestral properties in Thrissur, Kerala when my dad passed away.  My late dad had left behind a Will for his property matters in India. The Will was prepared on ‘normal’ paper (not on Stamp Paper) and was prepared by a lawyer in Kochi, Kerala. My late dad had signed the Will and had 2 of his friends to be his witnesses as well. My mum and I opened the Will after my dad’s death and found that he had named me as his beneficiary for his properties in India. When I mentioned about this Will to the Sub-Registrar at the Land Office in Kerala, I was told that Will is unacceptable as it was not endorsed or registered!
Later, when contacted by my relations in India, I was told that since my dad is no longer around, my mum and I will be the legal heirs to my late dad’s share of property.  To prove our claims as legal heir, I was also told to bring along a “legal heir certificate” from Malaysia. When I checked with a lawyer in Malaysia, I was told that there is no such certificate issued by the High Court here. Can my mother and I produce our marriage certificate and birth certificate respectively as evidence as legal heir?
In such a situation, what would be the best options you suggest? Thanks in advance and hoping to hear from you soon.

Answer
Registration of the WILL is not mandatory.It only helps to get a certified true copy of the WILL from the court, in case the original one is misplaced.However,it is necessary to get the WILL probated/certified by the court for the purpose of enforcement.In case, a person dies without making any WILL,then the property is distributed amongst his legal heirs as per the Succession Certificate is issued by the court.In the instant case, since your father died after making a WILL,properties both ancestral and self-acquired left by him will be distributed as per his last desire mentioned in it.However, for the said purpose, any of the beneficiaries including yourself can apply to the court having jurisdiction in the matter for probate of the WILL.After hearing all the concerned parties.The court will issue the necessary order.In case,the WILL is declared invalid by the court,you can apply for the Succession certificate.In both the cases, you have definite right to get your due share in the property.In the former case, as desired by your late father in his WILL and in the second case, equally with your mother and brothers and sisters,if any.For further details, please consult a suitable lawyer on property matters.To prove yur legal heir certificate, you can give an affidavit before the court,if it is at all necessary.Otherwise, your educational certificates will be sufficient documents to prove it and that should not be any hindrance.Apparently, you have a very strong case and you shouldd fight for the same.

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Arun Kumar Maitra

Expertise

Contract Law,Companies Act,Sale of Goods Act,Partnership Act,Negotiable Instument Acts,Constitution of India,Arbitration Act,Consumer Protection Act,Maternity Act,Payment of Gratuity Act,Payment of Bonus Act,Shops & Establishment Act etc.The answer to the grievance of the particular online query depends on the facts of the particular case and law applicable to it.However,my comments relating to the various queries raised through the "All Experts" should not be treated as legal advices and should not at all be relied upon.I do not accept any responsibility for them.They will only give you some ideas about the probable merits of your cases.Ultimate actions/decisions in the matter may please be taken in consultation with the Legal Experts in the relevant fields.My purpose of giving the comments is to increase my own knowledge on the subjects and share it with others.It is purely of academic interest to me. I strongly feel the more knowledge we share,the more we shall be able to learn because there is neither any age nor any end to learning.

Experience

I have experience of dealing with matters relating to holdings of board/general meetings,maintenance of statutory registers,filing of necessary returns with the RoC,obtaining licenses for import,replies to Parliament Questions,dealing with the Parliamentary Committees,appearing before various courts to defend my employers,filing affidavits/counter -affidavits,preparing written statements/re-joinder,giving advice to management on complicated legal issues,preparation,drafting and vetting of contracts etc. I have more than 35 years of experiences to deal with the Company Law and Other Commercial Laws of leading Organisations in the country both in Public as well as Private Sectors.

Organizations
Member,Inst. of Chartered Accountants of India Member,Inst. of Company Secretaries of India; Member,Bar Council of India Member,All India Management Association Member,Delhi Management Association Ex. Vice-Chairman,Durgapore Chapter of the I.C.A.I. Expert ,CA Club India Expert ,Lawyers Club India Expert,AllExperts Ex. Faculty ,I.C.S.I as well as I.C.W.A of India Retd. Co. Secy. & G.M.(Law)/NFL(A Mini-Ratna A Schedule Central P.S.U.),New Delhi Ex.V.P.(Secretarial Dept.),Jaiprakash Associates Ltd. Ex. Co. Secy.,MAMC(A Govt. of India Enterprise),Durgapore

Publications
Nil.

Education/Credentials
M.Com;LL.B;A.C.A;A.C.S.

Awards and Honors
Obtained ''A'' Grade Certificate in the Parliamentary Procedure from the Secy. General of Parliament in 1994-95.It was in connection with a training course conducted by the BPE for PSU Executives.

Past/Present Clients
I am presently working as a Company Secretary in Old World Hospitality Pvt. Ltd.located in Delhi.It is engaged in Hospitality Industry.It has Units in India and abroad.It has been given the responsibility to look after operation & Management of ''India Habetat Centre'' located at Lodhi Road,New Delhi.

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