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Photo: iStock

A person who is ordinarily insane may make a Will when he is of sound mind

Section 59 of the Indian Succession Act 1925, inter alia, requires that the person making a Will should be of ‘sound mind’

My father is 78 years old. Most of his wealth is self-earned. He is currently receiving counselling for depression. Will he be considered fit to write a Will? In its absence, can our cousins stake a claim on his self-acquired property?

—Nanda Bangar

Self-acquired property is distinct from a Hindu Undivided Family (HUF) or ancestral property. It will become ancestral or joint family property only if it is thrown into the pool of ancestral properties and the transferor indicates a clear intention to waive his separate rights in such property. Therefore, if it cannot be established with clear evidence that your father intended to waive his separate rights to such property and had transferred it to the common pool of ancestral or joint family property, then your father’s self-acquired property will continue as his distinct property; and on your father’s demise the other coparceners (your cousins) will not be entitled to claim a share in it.

Section 59 of the Indian Succession Act 1925, inter alia, requires that the person making a Will should be of ‘sound mind’. Further, explanation 3 to Section 59 provides that a person who is ordinarily insane may make a Will during an interval in which he is of sound mind. Also, more importantly, explanation 4 to Section 59 provides that no person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.

So, notwithstanding your father’s depression, if he is able to fully comprehend what he is doing at the time of making his Will, and the effect of the provisions of his Will, merely because he is suffering from depression, this will not preclude him from executing a Will. Though this is not mandated by the law, it is advisable that you obtain a certificate from a doctor certifying your father’s mental state and ability to make his Will at the time when he draws up his Will.

If your father dies intestate, according to the Hindu Succession Act, his assets would devolve upon his Class 1 heirs.

We are NRIs, holding foreign passports. My wife and I are joint owners of two flats in Mumbai. For one flat I am the first holder and my wife is the second holder, and the other way round in the other house. If one of us dies, do the houses automatically pass on the second owner or does any procedure have to be followed? As a joint owner, can we nominate a another joint owner as a nominee?

Can we also nominate our children as conditional nominees? For example, first nominee is my wife, if alive; then my son, if alive; then my daughter, if alive.

Is there any difference in nomination process for commercial properties? All above property are in a registered society.

—Name withheld on request

We have assumed that both you are Hindus.

From your query it is not clear whether the names of the first or second holders to the flats were added only for the sake of convenience (in which event, the person who purchased the flat with his/her funds and added the name of the other person for convenience only would be entitled to dispose of the flat, as per his/her wishes); or whether the names of the first or second holders, were added as joint owner (with equal ownership).

If it is the latter, then it is important to know the nature of ownership, if the flats are owned by you and your wife as joint tenants or as tenants in common. The nature of ownership may be read from the conveyance deed and the facts applicable at the relevant time, as this would also determine the succession of title.

In case of joint tenants, on the demise of either, your share in the flats would automatically devolve upon the other. However, if you hold the respective flats as tenants in common, on the demise of either, half share of the deceased tenant-in -common would devolve upon his/her legal heirs, in accordance with the rules relating to intestate succession under Hindu laws or as per Will of the deceased tenant in common.

While it would be possible for you and your wife to make nominations in the records of the society (in accordance with its by-laws) in favour of the other, note that a nomination does not confer absolute right of ownership. A nominee merely holds the asset as a trustee and is legally bound to transfer it to the legal heirs.

I would recommend that each of you execute a Will and you can both explicitly set out in it the manner in which the title and interest are to devolve on your death. This would also apply in respect of your commercial property.

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.

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