2 min read.Updated: 26 Nov 2019, 10:00 PM ISTRishabh Shroff
While you are free to include your cousins and friends in the Will, and exclude your children, this needs to be done carefully
The better approach would be to discuss this issue with your former wife, and arrive at a mutually agreed way to handle this
My former wife and I co-own a property in Pune. We are both in our 60s and got divorced 15 years back. She wants to Will the property to her stepdaughter from her second marriage, while I want to Will it to our daughter. What will happen if both name different people in the Will?
We are assuming that the co-owned property was not dealt with during the divorce, and that the registered title deeds and records of the property still mention your respective names as legal owners. If so, this implies that each of you have the ability to bequeath the property to whomsoever you wish. The problem in this approach is that your daughter and your wife’s stepdaughter will each inherit your respective ownership, and be stuck in the property as co-owners. This will create a problem if someone wants to sell it later.
The better approach would be to discuss this issue with your former wife, and arrive at a mutually agreed way to handle this. If a common name can be agreed, that would be the best but is less likely. Realistically, one side may need to buy out the other’s interest in the property. Of course, this has a stamp duty and tax concern. While this may be more expensive, it will ensure smooth long-term succession and ownership to the property. So explore all options with your former wife and then consult with your lawyer.
Is it possible to include cousins and friends in my Will? Can it get challenged by my children?
—Name withheld on request
Succession laws in India are religion-centric. Assuming that you are Hindu, the Indian Succession Act, 1925 will apply. The interesting aspect of this is that Hindu testators have “testamentary freedom", allowing them to give their property to whomsoever they wish. While you are free to include your cousins and friends in the Will, and exclude your children, this needs to be done carefully.
The key things to help navigate any challenge to your Will (which is highly likely in this case) is to provide a clear explanation on why you chose to make this deliberate choice, and establishing that you had proper mental capacity. The mental capacity can be demonstrated by having a doctor’s certificate as of the date of the Will, and the doctor as your witness.
Get your signing of the Will recorded and read it out on camera. Also, explain the reasons for your choices and don’t leave it vague. If you take these precautions, the chances of a successful challenge are reduced drastically.
Rishabh Shroff is partner, Cyril Amarchand Mangaldas. Queries and views at email@example.com
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