Sole owner can bequeath property to anyone
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I am in the process of making my Will and want to equally divide my house, which I bought in 1995, to my two daughters and my niece, who was brought up by me and my wife after her parents passed away. What are the laws regarding this? I am a Hindu, and both the daughters and the niece are married.
Assuming that the house you are referring to stands in your sole name, as per section 30 of the Hindu Succession Act, 1956, 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 that is applicable to Hindus at the time.
There is no restriction under the Hindu succession Act or under the succession Act on the persons to whom a Hindu may bequeath his self-acquired and self-owned properties.
So, if it is your intention that your two daughters and niece inherit your house in equal shares, you can bequeath a one-third share in the house to each of them through your Will.
However, it is imperative that your Will is duly executed by you in the manner set out in the succession Act.
For this purpose, your Will should be executed by you in the presence of two witnesses competent to contract (neither of whom, nor their respective spouses, should be a beneficiary under your Will) and they must attest the Will in your presence and in the presence of each other, after they have seen you executing the Will.
Apart from the above, there is no legal formality for executing your Will and bequeathing your property in equal shares to your two daughters and your niece.
You may opt to register your Will with the office of the sub-registrar of assurances under the provisions of the Indian Registration Act, 1908. Non-registration of a Will does not lead to any inference against the genuineness of a Will.
Lastly, if the house forms part of a co-operative society, it would be advisable to make the required nominations with the co-operative society as well so as to facilitate a smooth transmission of the house to the respective heirs.
Can I include my cousin sister in my Will? She is my mother’ sister’s daughter.
We have assumed that you are either Hindu or Sikh. As per section 30 of the succession Act, a Hindu (or a Sikh) may dispose of by Will or other testamentary disposition, any property that is capable of being disposed of by him, in accordance with the provisions of the succession Act. There is no restriction under this Act or under the succession Act on the persons to whom a Hindu or Sikh may bequeath his self-acquired and self-owned properties over which he has full disposing power.
Accordingly, it is possible for you, under the laws (as applicable to both Hindus as also Sikhs), to include your cousin as a beneficiary under your Will.
You could also consider mentioning in your Will the manner in which the specific asset bequeathed to your cousin would devolve, in the event that your cousin pre-deceases you, i.e., whether the asset would devolve upon the heirs of your cousin or to some other person named by you in your Will or whether it would form a part of your residuary estate.
Rest of the steps regarding execution and registration would be similar to what has been explained in the response to the previous question.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.
Queries and views at firstname.lastname@example.org.