My husband passed away in 2011 and left a house in my name. There are no other assets except some jewellery that I plan to distribute in my lifetime. I have three children and I want to bequeath it in a manner that all three have equal share. Should I get the Will registered since my son, who is the eldest of the three, is upset that I want equal share for my two daughters as well? How do I ensure that the property doesn’t go into dispute after my demise? Should I mention that the property should be sold and the proceeds be divided among my children? If I do so, will they have to compulsorily sell the property after my demise?
Under Section 18 of Indian Registration Act 1908, registration of a Will is optional. However, if the Will has been registered under the Indian Registration Act, 1908, it may help to prove its genuineness, though it does not necessarily mean that a registered Will cannot be challenged (for example, on the ground of undue influence or coercion) and that such challenges will not succeed.
It is not possible for you to completely rule out disputes in respect of your Will or your properties after your demise. However, you can minimise the risk of your Will and the bequests made by you thereunder not taking effect by reason of any challenge to the genuineness and validity of your Will, by ensuring that your Will is duly executed in accordance with the provisions of the Indian Succession Act, 1925.
You have the option to include a provision in your Will directing your executor to mandatorily sell your properties and to distribute the proceeds from such sale (after taking into account your debts and expenses, including expenses connected with the sale and administration of your estate) among your three children in the proportion that you deem fit. If there is such a mandatory direction given to your executor in your Will, your executor would be required to comply with such a direction.
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Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries. Queries and views at firstname.lastname@example.org