Provisions of a valid Will can supersede the Hindu laws of succession
In the absence of a Will, your assets will devolve upon your two daughters and husband in equal proportions
I own two houses. I have paid for both of them and the houses are also in my name. I want to bequeath one house each to my two daughters. They are both older than 18 years. I want to know who will be the first legal heir of these houses, will it be my husband or my daughters? As I want these houses to go to my daughters, should I make a Will in this respect? Can the instructions in the Will supersede the Hindu laws of succession? Kindly advice what I should do in this regard?
In India, the applicability of a personal law to a person is determined by the religion of the person.
I have assumed that you are a Hindu, as you have made a reference to the Hindu succession laws. Accordingly, the provisions of the Hindu Succession Act, 1956, would apply to you.
In case a Hindu female does not make a Will, her assets would devolve first upon the heirs mentioned in sub-section 1 of Section 15 of the Hindu Succession Act, 1956. As per this Section, read with Section 16 of the Hindu Succession Act, the property of a Hindu female dying intestate (without a Will) would first devolve upon the heirs mentioned in the first entry, which are the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.
Therefore, in the absence of a Will, your assets will devolve upon your two daughters and husband in equal proportions.
However, 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 or under the Indian Succession Act, 1925, on the persons to whom a Hindu may bequeath his/her self-acquired and self-owned properties over which s/he has full disposing power.
Since it is your intention that your two houses should devolve upon your daughters (so as to exclude the other heirs mentioned in the first entry), it would be advisable to make a Will, because a Will (properly executed in accordance with the provisions of the Indian Succession Act, 1925), shall supersede intestate succession under Hindu laws (which operates when there is no valid Will).
Also, by making a Will, it is possible to bequeath a specific asset to a particular person and/or alter the percentage in which your heirs would inherit an asset. Thus, you can bequeath your assets to your daughters in the manner in which you deem fit, to the exclusion of your husband, through a valid Will.
Please ensure that your Will is duly executed by you in the manner set out in 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) the Will as your attesting witnesses, in your presence and in the presence of each other, after they have seen you executing the Will.
Apart from the above, there is no legal formality for executing your Will and bequeathing your property to your two daughters.
While it is not compulsory, you may choose to register your Will with the office of the Sub-Registrar of Assurances under the provisions of the Registration Act, 1908.
Lastly, if the houses form part of a co-operative society, it would be advisable to make the required nominations with the co-operative society, as so to facilitate a smooth transmission of the house.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries
Queries and views at firstname.lastname@example.org