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Photo: iStock

Adopted and biological children have equal rights to their father’s estate if there is no Will

With a Will, the testator can bequeath his entire estate as per his wishes and absolute discretion

My parents have an adopted son and I, their daughter, am their only biological child. My father has passed away, and in his Will, he left me 80% of the property. The remaining 20% of the property has been shared equally between my mother and my adopted brother. Can my adopted brother challenge my father’s Will since he has not been given an equal share?

—Name withheld on request

I am assuming that your father was a Hindu and had legally adopted a child, your brother. In this case, the adopted and biological children would have equal rights in the estate of their father, if your father were to have died intestate, that is, without leaving a Will. But that is not the case here.

A Will is a document which has to meet certain requirements. For instance, it has to be signed by two witnesses in the presence of the testator, and so on, in order to be considered genuine and valid. Since your father has left a valid Will, he can bequeath his entire estate as per his wishes and absolute discretion.

However, the laws do permit any person who has an interest in the estate of the deceased, in this instance your brother, to challenge the validity and genuineness of a Will on certain grounds. So your brother may challenge the Will, if he desires to do so.

My wife received a property from her father through a gift deed, which he had got from his mother. But her father did not get an ancestral share of his father’s property as it was given to his younger brother in it’s entirety. The brother has sold the property to a third party and got paid in cash. Is it possible for my wife to challenge that sale? If it is, how and which court should we approach?

—Krishna

Assuming that all the parties are governed by Hindu laws, you may note that after the Hindu Succession (Amendment) Act, 2005, a daughter of a coparcener by birth becomes a coparcener in her own right in the same manner as a son.

Further, the amendment does not invalidate or affect alienation, partition or disposition of property, which took place prior to 20 December 2004.

Based on these criteria, if the sale of the property occurred after the amendment was made, and provided your wife’s father is still alive, your wife, being the granddaughter, would be entitled to a share in the ancestral property, which in the instant case is her paternal grandfather’s property. Hence, she is entitled to challenge the sale of the property. However, in the event that any partition had taken place between your wife’s father and his brother, she would be entitled to a share in the ancestral property.

If your wife is indeed entitled to challenge the sale, the suit may be filed in the appropriate civil court, which would have pecuniary and territorial jurisdiction over the subject property.

Aradhana Bhansali is partner, Rajani Associates. Queries and views at mintmoney@livemint.com

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