My father is 89 years old and has assets in his personal capacity as well as in the capacity of the karta of his Hindu Undivided Family, or HUF, (himself, my mother and myself). I have two married sisters who are not interested in claiming ancestral property. Can his HUF be continued after he is no more? Who will be the karta then? Can his HUF property be distributed among my HUF and HUFs of my two sons through a will? Can he make a will to distribute his personal property to his son, two grandsons and two great grandsons (excluding married sisters) in the ratio he decides?
We are assuming that your father has three children and you are the oldest child. We are also assuming that you are governed by Hindu Mitakshara law. On the death of your father, his HUF can continue and you (being his oldest child) shall be the karta after his death.
Section 6 of the Hindu Succession Act, 1956, as amended by the Hindu Succession (Amendment) Act, 2005, states that a coparcener is entitled to bequeath his share in a joint Hindu family property by testamentary disposition (by executing a will) or intestate succession. Thus, your father can bequeath only his share in the joint Hindu family property and not the entire property of the HUF, as the entire property doesn’t belong to him and he is entitled to only a particular share in the said property.
He can bequeath his share in the joint Hindu family property to any person of his choice by executing a will—to you and/or to his grandsons and/or to his great grandsons to the exclusion of your sisters if he so desires. In the event that he does not execute any will, the property will devolve as per the rules of intestate succession applicable to Hindus under the Hindu Succession Act, 1956—his share in the joint Hindu family property shall devolve upon his Class I heirs (being his wife and all his children, including his daughters).
However, it must be noted that we have not come across any provision of law or any case law, which permits a person to bequeath property to another HUF. Thus, it would be advisable if your father bequeathed his share in the joint Hindu family property to you and your sons as individuals and not to your HUFs, respectively.
Your father is entitled to bequeath his personal property to any person, including his son, his grandsons and great grandsons or to any other person who he desires in any ratio whatsoever by executing a will which reflects his intention.
The will must be in writing, the testator must sign the said will in the presence of two or more witnesses, who should also attest (sign) the will. Your father can’t bequeath any part of his property to a signing witness. It is advisable that your father appoints an executor to the will—if for any reason the will is challenged, all the property bequeathed under the will shall vest in the executor prior to the dispute being settled.
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