My son has two minor children. His elder daughter is from his first marriage. I want to leave one of my two properties exclusively in her name. The other property I want to divide equally between his two children. How do I ensure that she gets her share from both properties as an adult? For succession purposes, is it necessary that I appoint my son as her legal guardian?
I have assumed that you are a Hindu and succession of your property would be governed by the Hindu laws of succession. 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 properties over which he/she has full disposing power. So, there is no restriction on your bequeathing one of your two properties exclusively to your son’s daughter from his first marriage.
However, you should clearly specify the asset and the beneficiary in whose favour the asset is being bequeathed. If you propose to bequeath the second property to your two grandchildren equally, then you should specify that in your Will. Ordinarily, your son would be the natural and legal guardian of his daughter, if she is above 5 years and her mother would be her natural and legal guardian if she is less than 5 years (subject to any court order passed to the contrary). Assuming that your son is the daughter’s natural guardian, he would hold the property for the benefit of his daughter. As per Section 8 of the Hindu Minority and Guardianship Act, 1956, the natural guardian cannot dispose of immoveable property of the minor without the consent of the court, failing which the disposal of the immoveable property by the natural guardian is voidable at the instance of the minor or any person claiming through him/her. However, you can also specify in the Will that the executor of your Will or any other person named by you shall hold the properties bequeathed by you to your minor grandchild in trust, for her benefit, until she attains maturity.
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Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.