Should I make a Will in the city of my origin or where I have assets?

I am a Hindu man who has been living in Bengaluru for the past five years. I am originally from Mumbai. I own a flat near Koramangala in Bengaluru, and I do not have any in Mumbai or elsewhere in the country. Would it be better to make my Will in Bengaluru or in Mumbai, especially from a stamp duty perspective?

-Name withheld on request

There is no difference in terms of formalities whether you make a Will in Bengaluru or Mumbai. Both locations are covered within the ambit of the Indian Succession Act, 1925, which requires that a Will must be made in writing and attested by two witnesses. You may execute the Will in either location, so long as you find trustworthy witnesses.

Stamp duty is not payable on a Will, and therefore, this is not a relevant consideration in choosing where to make a Will. Moreover, if you choose to register your Will, there is no distinction between registering the Will in Mumbai or Bengaluru, except for nominal variations in registration fees.

However, the location where the Will is executed would be relevant to determine whether a probate in respect of such a Will is required or not after your demise. A probate is a certificate of authenticity in respect of a Will, under the seal of a court of competent jurisdiction.

A probate is required for the Will of a Hindu to establish the legal rights of an executor or legatee before any court if any one of the following two conditions is satisfied: if (i) the Will is made in Mumbai (that is, in the area which falls within the original civil jurisdiction of the Bombay High Court); or (ii) the Will relates to immovable property situated in the said area.

Please note that similar conditions with respect to probate also apply to Wills made in or immovable properties situated in Kolkata and Chennai.

Accordingly, if you execute your Will in Mumbai, the said requirement to seek probate will become applicable after your demise. However, if you execute your Will in Bengaluru, then this provision may not become applicable if you do not own any immovable property in Mumbai at the time of your demise; we understand that you currently do not own any immovable property in Mumbai.

Shaishavi Kadakia is a partner and Suja Nair is an associate at Cyril Amarchand Mangaldas.

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