Child given away for adoption can be excluded from biological father’s Will

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

My grandparents had three sons and one daughter. They legally gave away one son for adoption and he’s looked after by their family friend. My grandfather wants to execute a Will and was wondering if it is required to have the adopted son’s name in the Will. Can the Will be challenged later?

— Pawan Yadav

I am assuming that your grandfather is Hindu; accordingly, the Hindu Succession Act, 1956, would apply to him. As per Section 30 of the Hindu Succession Act, 1956, a Hindu may dispose of by Will or other testamentary disposition any property that is capable of being disposed of by him, 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 or her properties. Accordingly, your grandfather may bequeath his property to any person, including his sons and daughter, in such proportion that he may desire. If your grandfather wishes to exclude his adopted son from the Will, he would be permitted to do so, since he can dispose of his self-acquired properties under his Will to such persons as he deems fit, in his sole discretion, whether or not related to him.

Since you mention that one of your grandfather’s sons was legally adopted by your grandfather’s family friend, you may note that under the Hindu Adoptions and Maintenance Act, 1956, there is a deemed severance of the adopted person from his or her birth family and the son who is legally adopted by someone else, and as per the Hindu Adoptions and Maintenance Act, 1956, would not be a legal heir of your grandfather, where your grandfather dies intestate. Similarly, your grandfather is not required to bequeath any part of his estate to the son who was legally adopted by his family friend.

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 important that your grandfather duly executes his Will, in the manner set out in the Indian Succession Act, 1925, to minimize the scope for challenge. The Indian Succession Act, 1925 requires that the testator executes his Will in the presence of two witnesses competent to contract and such attesting witnesses must attest (i.e. sign) the Will as attesting witnesses, in the testator’s presence and in the presence of each other, after they have seen the testator executing the Will. Further, although not mandatory, your grandfather may consider registering his Will in the office of the Sub-Registrar of Assurances under the provisions of the Registration Act, 1908, since this would help in the assertion of its genuineness.

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries. Queries and view at mintmoney@livemint.com

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