Wills & Nominations

1. What is a will?

A will is a legal declaration of a person about his wishes to distribute his/her properties, assets and wealth to family, relatives, outsiders or charities after their demise.

2. Can I change or withdraw my will?

Yes, you can withdraw or change your will anytime you require during your lifetime.

3. What happens if I don’t make a will?

If you have not made a will, your assets, properties and wealth would be distributed as per Successsion Laws applicable to you on the basis of your religion (e.g Hindu Succession Act, Indian Succession Act, etc. These laws have fixed proportion of distributing assets among family members, which may not necessarily be the wish of the deceased. This could also lead to family disputes.

4. Who can make a will?

Any person with a sound mind and above 18 years of age can make a will. They should be capable of understanding their actions and should be free from any improper influences.

5. How to make a will?

Will can be handwritten or typed on plain paper (no need for stamp paper). It should be in a language that is understandable to the person making it and should cover all details of your family, properties, assets, liabilities and your wishes on distributing the property. The names of two witnesses, date and place of signing and the signature of the person making the will and the witnesses must be included in the will.

6. Are succession laws different for different religions?

Yes, different religions follow different succession laws. Buddhists, Sikhs, and Jains come under the category of Hindus. For Hindus, it is Hindu Succession Laws, for Parsi and Christians, it is Indian Succession act, and for Muslims, it is as per Sharia Laws. However, there are different rules for different types of Muslims, i.e. Shia, Sunni, and Khoja.

7. Can joint properties be included in a will?

Yes, a person owning any joint property is allowed to mention his wishes in his will for his part in the joint property. It is necessary to mention all joint properties to avoid unnecessary disputes.

8. Is it mandatory to notarise or register a will?

No, it is not mandatory to notarise or register a will.

9. Can an ancestral property be bequeathed in a will?

No, ancestral properties which are co-owned by all or many family members cannot be bequeathed.

10. Can business ownership in a firm/company be bequeathed in a will?

Yes, ownership as proprietorship in a proprietorship firm or share owned in a company can be bequeathed.

11. Who can be a beneficiary in a will?

Any person, body, trust, charitable institute, or society can be a beneficiary in a will.

12. When and how can a will be cancelled?

One can cancel/revoke their Will at any point of time or even by making a fresh will. Once a will is made, all the past/old will drafts get cancelled. A will can be revoked in the following ways:
• By executing a subsequent will
• By writing and declaring your intention to revoke the will
• By burning, tearing or otherwise destroying the will

13. Will I or my legal heirs be liable to pay income tax and other taxes for properties under the will?

No, In India, any property received under thewill does not attract any taxes, including capital gain tax.

14. After my father’s death, my mother, sister and I have made a first-class notary agreement that we will have equal rights over the property. Can I file a suit claiming that my children have a share in the unpartitioned property?

First of all, an agreement for dividing the property into three equal part is mandatorily required to be registered under the provisions of the Indian Registration Act, 1908.

On the basis of the information provided, we have concluded that the property is not a HUF property. Therefore, your proposed claim to file a suit claiming that your children have a share over the unpartitioned property being a HUF may not hold good.

15. A document for cancellation of registered Will is created with a proper reference to the previous will, but this cancellation is not registered. Will this be treated as cancelled? 

Under the Indian registration Act, 1908, the registration of a Will is optional and not compulsory if it satisfies all other requirements of a Will.

A new Will can be prepared by revoking the earlier Will as many times as desired. The last such Will shall be construed to be the final Will. Such new Will is not required to be compulsorily registered.

16. Is a handwritten will which is not registered considered a valid document?

Yes, a Will can be executed by any person (either typed or hand written) by affixing their signature and would need to be signed by two witnesses. It is not mandatory to register a Will.

17. If both parents die without making a Will, will the house be divided and given to their children or can be given to anyone of them?

In case the parents have not executed any testamentary document, the property would be divided equally among Class I heirs, that is, between their children equally.

 

They may execute a Will, bequeathing the property to any person they wish. They may also conduct a lifetime transfer or a lifetime gift to any of their children.

18. If there is no will, how to determine a legal heir?

In the event of ‘No-Will’ situation, if there are only movable properties, a succession certificate is to be obtained from the local court. For immovable properties, aLetter of Administration is to be obtained from the localcourt.

19. How to get the money from the bank if the account holder dies without nominating nor has made a will?

The person who is claiming will have to obtain a

·       certificate naming the legal-heirs (legal heir certificate).

·       Next, apply to the bank with the death certificate, indemnities and sureties as the bank may need, no objection certificate from all the other heirs, and proof of address and identity.  

20. Do I need a lawyer to make a will?

It is advisable to have a will written by a lawyer.

21. My mother and I live in a house owned by my father, who passed away intestate (without a will). Is there a way in which the house can be transferred to only my mother without any involvement of my brother and sister who live separately?

Since the house has been constructed by your father, it will be treated as a self-acquired property.  As there was no will made, the rights to property are equally with the legal heirs of your father – your mother, brother, sister and yourself.

Other legal heirs also receive a right in the property. However, all legal heirs can enter into family settlement agreement, mutually agreeing that your mother is a sole owner.

However, without the consent of all the parties (No objection), there would not be any other way to transfer sole interest in favour of your mother 

22. How many witnesses are required to a will?

There should be a minimum of 2 witnesses while preparing a will.

22. Mr. A and his daughter in law Mrs. B purchased jointly (50:50) a residential flat in 1990. Mr. A settled his 50 per cent share of the flat in 2010 in favour of his son Mr. B stating that after his death the share should go to Mr. B. Mr. A died in 2020. Mrs. B died in 2003 and her legal heirs are husband Mr.B, and 2 children Mr. C (now a non-resident) and Mr. D. Mr.C and Mr.D are willing to settle their share in the property in favour of their father Mr.B in full now. Mr.B after completing this settlement, plans to sell the flat and will get the complete sale proceeds in his name. Am I right in assuming that the holding period for capital gains calculation in hands of Mr. B will be the original date of acquisition i.e year 1990 and the cost of acquisition for indexation will be the cost at which the flat was originally acquired in 1990?

Yes. You are right. 

It is specifically provided in the income tax regulations that for the purposes of calculating capital gains on inherited / gifted properties you need to consider the period the property was held by the previous owners. In this case since the property was acquired in 1990, the period of holding (for the purposes of determining whether the property is a long-term capital asset or short-term capital asset) should be considered from that date. 

With respect to cost of acquisition, since the property was acquired before April 1, 2001, the Income-tax Act provides an option to consider either the original cost or the fair market value on this date as the cost of acquisition. This cost and any subsequent improvements can be indexed while computing the long-term capital gains.

23. Mr.A built a house and his son X contributed Rs.13 lakh of the Rs.20 lakh spent on its construction. What is the percentage of claim X should get?

If the said property is in Mr. A’s name he is the sole owner and son X have no right or claim over it. However, if son X can prove his contribution to the development of the said property, he can claim a share in it. The percentage shall be decided by the court.

24. My father’s cousin has no kids and he adopted a girl, but she stayed with her biological parents. In 2012, she got married and went abroad. Her adoption was registered and marriage was performed by my uncle. When my aunt died, the daughter did not come and my family supported the uncle. He filed to withdraw the adoption in 2017 and it is still pending in court. My uncle and his brothers partitioned their ancestral properties and my uncle got land & a portion of the ancestral house.   In 2020, my uncle willed his property to me and my brother. In the will, he clearly states that if the adoption case is not settled in his life, we brothers should continue the case. My uncle died later that year and now the daughter is demanding a share in the property. My uncle’s brother’s son is also claiming a share. I want to know: a) Once the ancestral property is partitioned, is it treated as self-acquired? b) Can the self-acquired property be willed to anyone? c) Does the adopted daughter. have any right to my uncle’s self-acquired property which was willed to us? d) My cousin is claiming he is a Class l heir. Can he stake a claim to the property?   

a) A partitioned property is treated as a person’s own property with complete right, title and interest over it. It is considered at par with self-acquired property. After partition, the person in whom the partitioned property vests, is treated as the absolute owner. b) Yes, a self-acquired property can be bequeathed to anyone through a will. c) Generally, an adopted daughter has the right to claim the shares of the self-acquired property of the adoptive parent. In this case,  her right to claim can be challenged on the ground of the adoption cancellation petition filed. d) The brother’s son doesn’t fall in the category of Class I legal heir. However, he could raise a claim by challenging the will of the deceased as he is a class II heir.

 

25. Mrs. A lost her husband two years ago after which her in-laws stopped supporting her financially. Last year her mother in-law also passed away. Can she claim her husband’s share in her mother in-law’s property if she passed away without making a will? The properties are as under:

a) Residential apartment originally owned by her father-in-law’s mother and then given through a will to her mother-in-law.

b) Commercial property bought from the proceeds of the sale of her father-in-law’s self-acquired property, but in her mother-in-law’s name. They are Hindus and Mrs. A has a surviving brother-in-law and a sister-in-law as well.

Based on the information provided, the property derived by your sister’s mother-in-law, by virtue of a bequest through a will, shall be her absolute property as per Section 14 of the Hindu Succession Act 1956, and she can deal with it in any manner she wants. However, in case a female Hindu dies intestate, the children of her predeceased son can claim their father’s share in the same property, but the widow of the predeceased son cannot claim anything.

26. Mr. B inherited some immovable property from his ancestors. After his death, this property was transferred to his 1^st son and his two brothers through a will written by Mr. B. Mr. B had two daughters who were not given any share in these properties in the will, voluntarily gave up their rights at the time of transfer of the property to the three brothers. Please advise if this property continues to remain an ancestral property in the name of his 1^st son and his two brothers, or will it now be treated as self-acquired property since it was transferred through a will?

According to the facts provided here, if an ancestral property is divided, transferred and registered in the name of the successors, then the property transforms its character. The said property becomes the absolute property of its owners, as it gets transferred in their names.

27. A year ago, Mr. X’s father made a will, naming all the family members as beneficiaries to his property. A few months later, Mr. X’s father made another will, wherein his spouse was named the sole beneficiary to the entire property. Mr. X’s father then availed of a reverse mortgage loan(RML) against this property. Mr. X’s father passed away recently. As the property is now mortgaged, does the will, which was executed before the RML, hold good as far as clearing the loan obligation is concerned? Even in RML documentation, a will is executed stating that his spouse shall enjoy the property rights. Mr. X in a dilemma about getting it shared as one of them has a vested interest.

Your father made a will, which was later changed in terms of beneficiaries, subsequently, during his lifetime, he got a reverse mortgage loan on his property. On his demise, as per the terms of RML, the outstanding amount needs to be paid to the lender by the beneficiaries/heirs. After the receipt of the outstanding amount, the lender will release the mortgage, making the property encumbrance-free for the concerned beneficiary as per the will.

In case a situation arises, wherein the designated beneficiary of the property(as per the recent will) is unable to meet the liability under RML due to paucity of funds, the lender sells the mortgaged property as per the terms of the RML. After recovering the dues, the lender hands over the surplus amount collected from the sales to the designated beneficiary in accordance with the probated will.

The latest will, written before the testator’s demise, is considered to be the valid will, unless it is proved to have been made under suspicious circumstances, These circumstances could be related to either the preparation of the will or the capacity of the testator, or indicate that the testator’s free will was overcast by actions of coercion or fraud. A valid will (earlier or the recent one) would need to be endorsed through the probate process for identifying the legitimate beneficiary. The reverse mortgage loan is guided by the lender’s documentation and actions around loan recovery, after which the documents are released unencumbered for the next course of action.