Clearly state in your Will how you want to devolve assets
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I inherited a house from my father in 1992, which was self-owned by him. I have also since built my own house. I am in the process of preparing my Will and wanted to understand how I should divide both the properties between my two daughters. My wife passed away 3 years ago. I want them to have an equal share in both the houses, which are located in Indore.
I have assumed that you are a Hindu and accordingly, the Hindu Succession Act, 1956, would apply to you. As per section 30 of the Act, a Hindu may dispose of by Will or other testamentary disposition, any property which is capable of being disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force for Hindus. I understand that the two houses do not form part of any Hindu Undivided Family (HUF) property, and stand in your own name.
In view of the provisions of both the succession Acts, you would be able to bequeath your right, title and interest in the two houses to your two daughters in equal shares.
In your Will you should provide a brief description of each house (including the land on which the house is built, assuming that the land is also owned by you and is to be bequeathed to your daughters) and you should state that the house (and land where applicable) belongs to you and state that you give, devise and bequeath the said land and house to your two daughters in equal shares.
If the house forms a part of a co-operative or other society, then you should also include details of your shares or other interest in such society and state that you are bequeathing your interest in such shares or interest in the society to your daughters (and your rights in the house which are incidental to your holding the shares or interest in the society) to your daughters absolutely and in equal shares.
It is also important to state the manner in which you intend that your houses devolve, should any of your daughters pre-decease you, i.e., whether you intend that the asset should devolve upon your surviving daughter or whether the asset should devolve upon the heirs of your pre-deceased daughter. This is because as per the provisions of the succession Act, 1925, if a bequest is made to a child or a lineal descendant of the testator, and the legatee dies during the lifetime of the testator then the bequest does not lapse, but takes effect as if the death of the legatee had happened immediately after the death of the testator and the bequest would then devolve upon the legal heir of the legatee, unless otherwise specified. Therefore, if your intention is not clearly expressed in the Will, in the event that any of your daughters pre-deceases you, her half share in the asset would devolve upon the heirs of your deceased daughter.
Please note that it is imperative that your Will is duly executed by you in the manner set out in the succession Act, 1925. It requires that the testator executes his Will in the presence of two witnesses and such attesting witnesses must attest the Will, in the testator’s presence and in the presence of each other, after they have seen the testator executing the Will. Though not mandatory, you may opt to register your Will with the office of the Sub-Registrar of Assurances under the provisions of the Registration Act, 1908.
Lastly, if the houses form part of a co-operative or other society, it would be advisable to make the required nominations with the respective co-operative or society, if required, to facilitate a smooth transmission of the house in the names of your daughters.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.
Queries and views at firstname.lastname@example.org.