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A terrorem clause can prevent any beneficiary from contesting a Will

A terrorem clause in the Will states that if any beneficiary contest the Will, such beneficiary would forfeit his or her interest in the estate

I am 64 and I want to give a small piece of land to my caretaker after I die. If I make a Will, can my son challenge this after I die? What is the right way to go about it?

—Mahendra Thakur

I have assumed you are Hindu and the land is in your name and you have full disposing power over it.

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. In view of the provisions of the Hindu Succession Act, 1956 read with the provisions of the Indian Succession Act, 1925, you would be able to bequeath your right, title and interest in the land to your caretaker.

While it is possible for a Will to be contested, the grounds of challenge are usually limited to fraud, forgery, undue influence, coercion, lack of testamentary capacity and due execution. Therefore, it is imperative that your Will is duly executed so as to minimize the scope for challenge.

We would also recommend that your intention is clearly set out in your Will and that you also provide a cogent reason for bequeathing this land.

Also, in case you do bequeath some asset(s) to your son, you could consider a terrorem clause in the Will, which states that if any legatee or beneficiary contest the Will or its provisions, such beneficiary would forfeit his or her interest in the estate.

However, please note that if your son is a minor, (he would be considered to be a dependent) and if he does not inherit any property from you (under your Will or through intestacy), he would be entitled, subject to the provision of the Hindu Adoption and Maintenance Act, 1956 to be maintained by your heirs receiving a share in your properties.

My grandfather had 5 daughters and two brothers. Two of the brothers and four of the sisters are now dead. There is one property worth Rs50 lakh. How will this be distributed? Will the grandchildren of the dead brothers and sisters have any claim?

—Jenul Dalal

We have assumed that your grandfather was a Hindu and that he died intestate (i.e. without leaving a Will).

As per Hindu personal law, in the absence of a Will, your grandfather’s assets would devolve upon his Class 1 heirs. Class 1 heirs include a son; a daughter; a widow; a mother; a son of a pre-deceased son; a daughter of a pre-deceased son; a son of a pre-deceased daughter; a daughter of a pre-deceased daughter; a widow of a pre-deceased son; a son of a pre-deceased son of a pre- deceased son; a daughter of a pre-deceased son of a pre-deceased son; a widow of a pre-deceased son of a pre-deceased son.

You have mentioned that out of your grandfather’s 5 daughters, 4 have passed away. If his 4 daughters died after the demise of your grandfather then the land would have vested in them on his demise. Accordingly, the share that the deceased daughters would have inherited would then devolve upon their respective heirs either by testamentary succession (in case they made a Will) or intestate succession (which is based on the personal law applicable to them, which we assume would be Hindu law).

If any of the 4 daughters predeceased your grandfather, then their children would be entitled to one share (that is the share which the predeceased daughter would have been entitled to, had she survived her father).

Lastly, since the property belonged to your grandfather, his brother’s children would not be entitled to a share.

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

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