I am 65 and planning to make my Will. I had two sons and one of them passed away recently and is survived by his wife and son. I want to transfer 60% of my property to my deceased son’s family and the remaining 40% to my second son. If the property is named after the daughter-in-law in the Will, can it be challenged in court later? If so, is it better to name the minor son instead?
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/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 under the Hindu Succession Act, 1956 nor under the Indian Succession Act, 1925 on the persons to whom a Hindu may bequeath his/her properties.
Accordingly, you can bequeath 60% of your property to your deceased son’s family and the remaining 40% to your second son. You could bequeath 60% of your property solely to your daughter-in-law or to your grandson or to both jointly or divide 60% of your property between them in such proportion that you desire. If your grandson is a minor at the time of your death, then his mother would have to hold the property bequeathed to him, for his benefit, until he becomes a major.
Also Read: Grandchildren are equally entitled to an undivided share in the ancestral property
Your Will should be executed in accordance with the provisions of the Indian Succession Act, 1925. For this purpose, your Will should be executed by you in the presence of two witnesses competent to contract and your attesting witnesses must attest (i.e. sign) your Will as your attesting witnesses, in your presence and in the presence of each other, after they have seen you executing the Will. The beneficiaries under your Will should not be attesting witnesses of your Will.
Further, you may register your Will under the provisions of the Indian Registration Act, 1908, though registration is not mandatory. A Will does not require to be stamped.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries. Queries and views at firstname.lastname@example.org