Both biological and step children can be beneficiaries in a Will
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I am a 52-year-old Hindu woman. I have two children. About 5 years ago I remarried and now I also have two step children. Recently I bought a house in which I am the sole owner.
a.If I do not make a Will for the house, who will be the natural heirs of this property?
b.Will it go to my biological children or to my step children as well?
c.I have also been gifted some shares and mutual funds by my parents. Do my step children and my biological children have a natural right on this property too?
d.How do I ensure that my step children and my biological children have equal stake in my inherited and self-acquired property?
As you are a Hindu, the Hindu Succession Act, 1956 would apply to you. According to section 15, read with section 16 of the Act (which deals with succession as well as the order of succession or manner of distribution amongst heirs), succession to the owned property of a female Hindu dying intestate (i.e., without making a Will), shall be as under:
(a) first, the sons and the daughters (including the children of any predeceased son or daughter) and the husband;
(b) second, heirs of husband;
(c) third, mother and father;
(d) fourth, heirs of father;
(e) last, heirs of mother.
Therefore, if you do not make a Will, your property will devolve upon your two children and husband in equal shares (section 19 of the Act) and not your step children. In the event that your children and husband die before you, then your assets will devolve upon your step-children.
Please note that if a Hindu female dies without leaving any issue, then:
(1) in respect of property inherited by her from her father or mother, that property will devolve not according to the order laid down in the five entries (i.e., (a) to (e)) set out above, but upon the heirs of intestate Hindu female’s father; and
(2) in respect of property inherited by her from her husband or father-in-law, it will devolve not according to the order laid down in the five entries set out above but upon the heirs of the husband.
For the shares and mutual fund, since these have been gifted to you by your parents, and I assume you are the sole beneficial owner, then in case you do not make a Will, it will also, as indicated above, devolve only upon your two children and husband in equal shares and not your step children. However, since you have stated that it is your intention that your assets (inherited and self-acquired), including your houses and securities devolve upon your step children and your biological children in equal proportion, it is imperative that you make a Will.
As per section 30 of the succession Act, a Hindu (which will include both men and women), may dispose of by Will or other testamentary disposition, any property that is capable of being disposed of by him or her, in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force applicable to Hindus.
There is no restriction on who can be a beneficiary under the Will and therefore you may include your step children as beneficiaries.
Please ensure that your Will is duly executed by you in the manner set out in the Indian succession Act. This Act requires that the testator or testatrix executes his or her Will in the presence of two witnesses competent to contract and such attesting witnesses must attest (i.e., sign) the Will as attesting witnesses, in the testator’s or testatrix’s presence and in the presence of each other, after they have seen the testator or testatrix executing the Will.
Lastly, you may choose to register your Will with the office of the sub-registrar of assurances under the provisions of the Registration Act, 1908, although it is not mandated in law.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.
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