What is the difference between a gift deed and a Will? If I have transferred a property to a relative as a gift deed, should I mention about it in the Will to avoid disputes?
—Mandeep Singh
A gift is defined under the Transfer of Property Act, 1882 as “the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee and accepted by or on behalf of the donee". By implication, it follows that a gift deed is a document that evidences such a transfer and takes effect during the lifetime of the donor.
On the other hand, a Will, as defined under the Indian Succession Act, 1925, is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. The main difference between the two is that a gift deed operates as soon as it is executed (unless a contrary stipulation has been made therein) and the assets gifted vest in the donee during the lifetime of the donor, whereas a Will is operative only on the death of the testator and properties bequeathed through the Will vest in the legatees only on the death of the testator.
A Will does not require to be stamped or registered. A gift requires to be stamped as per applicable stamp laws. If it is a gift of immoveable property, it would have to be registered under the provisions of the Indian Registration Act, 1908.
It is not mandated by law for you to give an account in your Will of any gifts that you may have given in your lifetime. But sometimes such previous gifts are mentioned if the testator is not bequeathing property to any person by reason of having previously gifted properties to such person, with a view of avoiding challenges by such persons who do not receive bequests under the Will.
I was recently approached by a company that makes online Wills. Are online Wills safe? And can such companies be trusted? What are the things or documents I need to ensure they give me in return?
—Reena Mahapathy
I understand that the company which makes online Wills, as referred to by you, will only advise you and assist you in preparing a draft of your Will through an online process. You will need to inform the online advisor of the personal law by which you are governed, provide them with details of your assets and also confirm how you would like each of your assets to devolve upon your heirs.
Once the draft of your Will has been finalised, you will need to print a hard copy of the finalised Will and execute a physical copy of the Will in accordance with the provisions of the Indian Succession Act, 1925.
The Indian Succession Act, 1925, requires that (other than in the case of Mohammedans), the testator (person making the Will) executes the Will in the presence of at least 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. This requirement will have to be completed on physical paper which cannot be done online.
Separately, if you choose to register your Will (which is not mandatory by law), you will have to register the physical Will in the office of the Sub-Registrar of Assurances in whose jurisdiction you reside.
You will need to make independent enquiries on the credentials of the concerned company.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries
