FAQs

Will

'Ask Us' Library

Personal Status

 

Property/Real Estate

Can a property which is still not in my possession be mentioned in the Will?

Can I bequeath a tenanted or Pagdi property?

What is the procedure to declare a nominee for one's property? For bank accounts, demat accounts, mutual funds, there is no doubt. However, I am not aware of how this is done for property.

What is the legal difference between Lifetime beneficiary and Primary Beneficiary. What extra/less rights accrue to both types?

My intention is to bequeath my residential flat to my only daughter. But I fear that a situation may arise after my death, where my daughter could be forced to sell the flat for the money by her in-laws. To act as a deterrent for this situation, I have nominated her only 90% share, balance 10% I have equally nominated to her maternal uncle and aunt. Whether this potential conflict will create a problem for transferring the flat in my daughter's name after my demise? Secondly, will this really be a deterrent for the subsequent flat sale if my brother and sister do not want to allow it? Thirdly is there a better way to prevent a forcible sale by pressurising my daughter?

Can the ultimate benefciary (Final Legatee) sell the property bequeathed to her/him if the Lifetime Interest Holder agrees to the sale during his/her lifetime?

If a testator has multiple immovable properties then Probate is required for all the properties separately or only one probate copy is sufficient for all the immovable properties?

Can we bequeath an ancestral property? Property inherited from father and currently completely transferred to my name? Can anyone claim from it?

 

Financial assets

 

Probate

 

Others

 

Key Terms

Beneficiary

A beneficiary is a person (family or friends) or an organization (for example, a charity) to whom you have bequeathed a part or all of your assets in your Will. A beneficiary may also act as an executor of your Will. You should not make a beneficiary one of the witnesses to your Will.


Estate

Estate is simply a legal word to represent everything you own, including property and financial assets.


Executor

An executor is responsible for implementing your wishes as set out in your Will, after your demise. You can appoint your spouse, a close relative or a friend to act as an executor. You may even wish to avail of paid services of an institutional executor. Serious thought needs to be given to the choice of an executor as an executor would need to spend considerable time and effort to effect the Will.


Guardian

A guardian is a person named by you in the Will to look after your minor children after your demise. A child would attain legal majority at the age of 18 unless a guardian was appointed during the minority of the child in which case, a child attains majority at the age of 21.

If the guardian you choose is not an executor, the guardian would not have automatic access to money you may leave for your children. Instead, they would get funds to raise your children from the executor.


Probate

A probate is a copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of your estate to the executors and is essentially a decree declaring the correctness and legality of your Will. It establishes the right of the beneficiary to the asset being inherited.

 

Will Concepts

What is a Will

Definition

A valid Will has been defined under the Indian Succession Act, 1925 as "the legal declaration of the intention of the testator, with respect to his property, which he desires to be carried into effect after his death."

The Will must be in line with the law and be made by someone who is competent to make it. This person needs to be:

  • not a minor;
  • of sound mind;
  • free from fraud, coercion and undue influence.

A Will must be in writing and can be on plain paper. (Oral Wills can be made by a soldier, airman employed in actual warfare or a mariner at sea by him declaring his intention before two witnesses present at the same time. Such a Will, however, shall become null at the expiration of one month if the testator is still alive).

The Will must be signed by the testator and attested by two or more witnesses.

 

Can a Will be changed?

Yes, it can be. You could create a codicil and change only elements of the old Will that you desire to change. Alternately, you can create a new Will (and in that Will state that you are revoking all old Wills) with the changed clauses.


Does a Will need to be registered?

The registration of instruments is covered by the provisions of the Indian Registration Act, 1908. Please note that there are some instruments that need to be compulsorily registered and some that do not need to.

A Will is an instrument that does not need to be compulsorily registered. Theoretically, a Will that is not registered is as valid as one that is registered. Practically, however, there are some authorities that treat a registered Will a little differently. For example, the Delhi Development Authority does not ask for a No Objection Certificate (NOC) from Class I legal heirs if a registered Will is produced for mutation of residential plots (page 12 on http://www.dda.org.in/docs/RESPL.pdf).

Please note that even with a registered Will, validity of the Will could still be challenged on account of issues such as insanity, coercion and undue influence.


Can a registered Will be revoked?

Yes, even a registered Will can be revoked and replaced with a subsequent Will. The new Will would also need to get registered as well unless you register a Deed of Revocation.


Can a Will get automatically revoked?

For Parsis and Christians, the marriage of the testator automatically revokes previous Wills.

Please note that the act of divorce does NOT revoke a Will.

Would I need a Will even if

I only have financial assets and I have nominees for all of them

Yes, you will on account of the following reasons.

For most financial products, the status of a nominee is that of a trustee (and the nominee does not automatically become the owner of this asset after the demise of the testator). For such financial products, it will be the person named as the beneficiary in the Will who would become the owner. If no Will is made, it would be your legal heirs as per the law of intestate succession relevant to you who would have rights to these funds. This holds good for the most financial instruments such as bank accounts, insurance policy settlements, post office savings and public provident fund savings.

There are of course some products/ assets that, in some cases, might not have a provision for a nomination. You should check your company’s Employee Stock Option Plan if it provides for a nominee. If it does not then a Will is the only instrument to indicate your choice of beneficiary for such options.

In these instances, when a nominee’s status is that of a trustee, there continues to be a definite benefit in having a Will to clarify the final beneficiaries.

Please remember that obtaining access to your funds is easier for your successors if you have made nominees. It allows banks, mutual funds, insurance companies, depository participants to discharge their responsibility towards the depositor or investor.

I am a bachelor

Yes, you do. You would like to have the choice of who to leave your assets to. For bachelors, the Will fulfils another key purpose – that of enumerating your key assets . It is conceivable that no one apart from you has a clear conception of your asset holdings and liabilities.

Thus a Will would fulfil the dual benefits of asset information and bequeathing.


There is a conflict in my family

A Will becomes even more critical in this circumstance, especially if the assets are significant in value.


I am a Goan married under Portugese family law

For Goans married under the Portugese Family Law, there are forced heirship rules. Under these rules, a portion of your estate goes to surviving spouse and children; you have the right to bequeath only the remainder to beneficiaries of your choice.


I am an unmarried or a Muslim married under my personal laws

Muslims are subject to forced heirship rules that require at least two thirds of the testator’s estate to be inherited by the line of succession. Under Muslim Personal Laws, a Muslim (professing the religion of Islam) cannot, by Will, dispose than more of 1/3 of the surplus of his estate after payment of funeral expenses and debts.

Under Shia Laws, the bequeath of this 1/3 requires the consent of other heirs and this consent can be given during the testator’s life or post the demise of the testator. Under Sunni Laws, this consent should be given after the demise of the testator.

These rules do not apply to the Aga Khani Khoja community; members of this community are allowed to bequeath their assets to beneficiaries of their choice.

 

Succession and domicile

What is succession

‘Succession’ in relation to property and rights and interests in property generally implies ‘passing of an interest from one person to another’.

Succession is essentially the transmission of the legal rights and obligations of the deceased to his or her heirs.

Succession also signifies the estate, rights and charges which a person leaves after his death. It includes the rights and obligations of the deceased, as they exist at the time of his death, and all that has accrued thereto since the opening of the succession and new charges to which it becomes subject. Finally, succession signifies also that right by which the heir can take possession of the estate of the deceased.

Two terms commonly used with respect to succession are (1) Testamentary Succession which means the disposition of the property of an individual, generally effected by a will or codicil, which would take effect after his death (2) Intestate Succession which implies succession to the property of the deceased without him having provided for the manner in which it is to be given to his heir(s).

The laws governing succession are applicable only to that person who is desirous of making a will or preparing an estate plan, and not to his or her heirs.

The laws that govern succession largely depend on three factors (1) where the property that is to devolve is situate; (2) the domicile of an individual at the time of his death; and (3) the religion of the deceased.

Property-based applicable laws:

  • In the case of immovable property in India, the laws of India are applicable, irrespective of where the deceased has his domicile.

    For example, if A, having his domicile in France, dies leaving immovable property in India, then the succession to such property will be regulated by the law relating to succession in India which is applicable to him.

  • In case of movable property, the law of the country in which the deceased has his domicile at the time of his death, is applicable.

    For example, if A, having his domicile in France, dies leaving movable property in India, then succession to such property will be regulated by the law of France.

The concept of domicile is often confused with that of residence and citizenship. Residence merely implies that a person is staying in a particular place and Citizenship implies that a particular person belongs to a particular country. Domicile, on the other hand, is a combination of the fact of residence in a particular place, coupled with the desire to reside there permanently or indefinitely.

Domicile can be of 2 main types:

  1. Domicile of origin
  2. Domicile of choice

Domicile of origin will be the domicile of one’s father at the time of his birth.

Domicile of choice is the domicile which a person of full age and sound mind acquires when he actually resides in a country, with the intention of residing there permanently or indefinitely.

Religion-based applicable laws:

  • Hindus, Buddhists, Sikhs & Jains – Hindu Succession Act, 1956 and Hindu uncodified law
  • Muslims – Shariat (Muslim personal law)
  • Others (like Parsis, Christians, Jews, others married under Special Marriages Act) – Indian Succession Act, 1925;

Additionally, the Indian Trusts Act, 1882, the Indian Stamp Act, 1899, the Registration Act, 1908, the Income Tax Act, 1961, and the Stamp Acts in relation to the States where one resides would also apply.

Bequeathing rules based on domicile and religion

When do I need to revisit a Will?

A new Will is recommended in the following instances:

  1. If you are a Parsi or a Christian, your old Will stands automatically revoked upon marriage.
  2. If any major event has happened, such as the following:
  1. Any significant additions/deletions of your assets, eg purchase of a new property.
  2. Any fresh liability incurred like a loan.
  3. A need to change the guardian of minor children.
  4. A need to change the Executor/s of the will.
  5. A major life event like the birth of a child or divorce.

Who should I choose

As beneficiaries

Close family members, dependents, charities and alumni associations are the more common choices of most people as beneficiaries.

You would need to give additional thought on whom to choose as alternate and further alternate beneficiaries. While we all hope that disaster situations never arise, it is only prudent to plan for them.

Are there any restrictions on bequeathing assets to non resident Indians/ other foreign nationals?

There are different factors that guide whether a person needs to seek approval from relevant authorities prior to inheriting assets OR selling inherited assets OR remitting funds from such a sale.
These factors are primarily:

  1. Citizenship: Citizens of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal and Bhutan have to adhere to requirements as imposed by the Reserve Bank of India (as depicted in the table below). The table also set outs the requirements for a beneficiary who is a foreign citizen but not from the countries listed above.
  2. Origin: A foreign citizen but of Indian origin namely a Person of Indian origin (PIO).
  3. Residency: An Indian citizen but not resident in India (namely an NRI)

A summary of the key items is presented below.

Can the beneficiary NRI PIO Foreign citizen not of Indian origin Citizen of P, B, SL, AF, CI, N, B *
Inherit properties
including agricultural
land, farm, plantation
Yes Yes Yes Requires RBI approval
Sell residential and
commercial properties
Yes, to a
- Person resident in India
- NRI
- PIO
Yes, to a
- Person resident in India
- NRI
- PIO (with prior RBI
approval)
Yes, with RBI approval to
- Person resident in India
- NRI
- PIO
Yes, with RBI approval to
- Person resident in India
- NRI
- PIO
Gift residential and
commercial properties
Yes, to a
- Person resident in India
- NRI
- PIO
Yes, to a
- Person resident in India
- NRI
- PIO
Yes, with RBI approval to
- Person resident in India
- NRI
- PIO
Yes, with RBI approval to
- Person resident in India
- NRI
- PIO
Sell agricultural land Yes, to an Indian citizen who is resident in India Yes, to an Indian citizen who is resident in India RBI approval required to sell RBI approval required to sell
Gift agricultural land Yes, to an Indian citizen who is resident in India Yes, to an Indian citizen who is resident in India RBI approval required to gift RBI approval required to gift
Repatriate proceeds if
property inherited from
person resident in India
Upto USD 1 million per
year
Upto USD 1 million per
year
- -
Repatriate proceeds if
property inherited from
person resident outside
India
- - With RBI permission With RBI permission

*Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal, Bhutan

As guardians for my minor children

The role of a guardian entails handling affairs of the minor ward: ensuring that education, health and upbringing are in line with what you would have done.

You could choose the minor’s natural guardian (your spouse) to be the primary guardian. Do give thought to the choice of who should the alternate guardian be.

As an executor for my Will

Role and responsibility

Choosing the appropriate executor is a difficult and important choice. He or she is the person who is going to ensure that your wishes as expressed in your Will are carried through.

The executor would need to

  1. interact with lawyers (to ensure that the Will is probated/ Succession Certificate obtained), proving authenticity of the Will
  2. ensure that all debts are first paid, including selling any assets if the need arises
  3. charge costs of ensuring this succession to the estate
  4. to value assets using a valuer, if required
  5. to sell assets if these need to be sold for meeting cash bequests requirements
  6. ensure that bequeaths are carried out in accordance with the wishes of the testator
  7. manage and maintain the assets till the bequeaths are affected

Who should you choose ?

As mentioned above, this is a difficult and important choice. Testators frequently choose

  1. the beneficiary who stands to inherit the most
  2. a close friend who they respect for being fair, even-handed and extremely ethical
  3. Someone who is young and healthy

Should you take a person’s consent prior to making that person as executor?

The executor’s consent is sought to ensure that they are indeed willing to undertake an onerous and time consuming task. And yes, it is a good idea to inform them of your choice and obtain their consent.

Does an executor get paid ?

An executor can be paid. Often, however, executors are close family members and friends who choose not to be paid for rendering this help.

 

Can a

Beneficiary be a witness

The relevant section from the Indian Succession Act, reads

67. Effect of gift to attesting witness.- A Will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting, or the wife or husband of such person, or any person claiming under either of them. Explanation.-- A legatee under a Will does not lose his legacy by attesting a codicil which confirms the Will.”

This clause is applicable to Parsis and Christians and not to Hindus, Buddhists, Jains, Sikhs or Muslims. However, as a measure of abundant caution, you could choose witnesses who are not beneficiaries.

For a witness, choose someone younger than you and preferably have a doctor as one of the witnesses.

Witness be an executor

The relevant clause from the Indian Succession Act, reads

68. Witness not disqualified by interest or by being executor.- No person, by reason of interest in, or of his being an executor of, a Will, shall be disqualified as a witness to prove the execution of the Will or to prove the validity or invalidity thereof.”

Thus, a witness can be an executor.


Beneficiary be an executor

The relevant clause from the Indian Succession Act, reads

141. Legatee named as executor cannot take unless he shows intention to act as executor.- If a legacy is bequeathed to a person who is named an executor of the Will, he shall not take the legacy, unless he proves the Will or otherwise manifests an intention to act as executor. Illustration A legacy is given to A, who is named an executor. A orders the funeral according to the directions contained in the Will, and dies a few days after the testator, without having proved the Will. A has manifested an intention to act as executor.

It may be useful to name a significant beneficiary like a spouse or a child as either the sole or one of the Executors as it is in their interest to execute the Will speedily.

On Probate

When is a probate required

The requirement of a probate is set out in the Section 213 (1) of the Indian Succession Act.

“Section 213 (1). Right as executor or legatee when established.- No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.”

It is required thus, to establish rights as executor or beneficiary in a Court of Justice. There are additional religion based circumstances that determine when it is required.

Hindu, Buddhist, Sikh, Jain: Probate is required for these religions if the Will is made in the local limits of the civil jurisdiction of the High Courts of Madras, Bombay and territories that were subject to the Lieutenant Governor of Bengal as on September 1, 1870 (OR) if the Will made outside these limits but pertain to properties located within these areas.

Parsi: Probate is required for these religions if the Will is made in the local limits of the civil jurisdiction of the High Courts of Madras, Bombay and Calcutta (local limits as in 1962) (OR) if the Will made outside these limits but pertain to properties located within these areas.

Muslim, Christian: Not mandatory for Probate for these religions.


Where does the Executor go for a probate

The Executor could apply to the District Judge in the district where the testator has a fixed place of residence or has moveable or immoveable property. The application to the District Judge is contingent upon the value of the property beyond the state in which the district is located being less than INR 10,000/-. If the value of the property beyond the state is in excess of INR 10,000/- , the application has to made to the High Court of the state.

How much is the court fees charged when probate is applied for

The court fee to be paid differs from state to state. An idea can be gauged from the listing below:

  Value of the estate for which
probate desired (INR)
Court fees Name of the Act
Karnataka 1,000 to 300,000 3% Karnataka Court Fee & Suits Valuation Act, 1958
  > 300,000 5% subject to a cap of INR
30,000/-
 
       
Mumbai 1,000/- to 50,000/- 2% Bombay Court Fees Act, 1959
  50,000/ to 200,000/- 4%  
  200,000/- to 300,000/- 6%  
  > 300,000/- 7.5% subject to a cap of INR
75,000
 
       
Tamil Nadu 1,000 to 5,000 2% Tamil Nadu Court Fee & Suits
Valuation Act, 1955
  > 5,000 3%  
       
West Bengal 2,000 to 10,000 2% The West Bengal Court Fees Act, 1970
  10,000 to 50,000 3%  
  50,000 to 100,000 4%  
  100,000 to 250,000 5%  
  250,000 to 300,000 5.5%  
  300,000 to 400,000 6%  
  400,000 to 500,000 6.5%  
  > 500,000 7%  
       
Kerala 1,000 to 1,00,00,000 1% Kerala Court Fee & Suits
Valuation Act, 1959
  >1,00,00,000 0.5%  
       
Gujarat 1,000/- to 50,000/- 2% Gujarat Court Fee Act, 2004
  50,000/ to 200,000/- 4%  
  200,000/- to 300,000/- 6%  
  > 300,000/- 7.5% subject to a cap of INR 75,000  
       
Punjab 1,000 to 10,000 2.5% The Court Fees (Punjab Second Amendment) Act, 2009
  10,000 to 50,000 3.25%  
  > 50,000 4%  
       
Goa 1,000 to 10,000 2.5% Court Fees (Goa Amendment) Act, 1997
  10,000 to 50,000 3.5%  
  > 50,000 5%  
       
Delhi 1,000 to 10,00,000 2.5% Court Fee (Delhi Amendment) Act, 2012
  10,00,000 to 50,00,000 3.25%  
  > 50,00,000 4%  
       
Andhra Pradesh 1,000 to 5,000 2% Andhra Pradesh Court Fees & Suits Valuation Act, 1956
  5,000 to 50,000 3%  
  50,000 to 100,000 4%  
  > 100,000 5%  
       
Madhya Pradesh 1,000 to 10,000 2% The Court Fees (Madhya Pradesh Amendment) Act, 1958
  10,000 to 50,000 2.5%  
  > 50,000 3%  

What is the process to be followed upon my demise

Possible processes that might need to be followed by your beneficiaries in order to access your assets.

Process of Executing the Will

'Ask Us' Library

Personal Status

What is special marriage act? How will I know if I am married under that act?

The Special Marriage Act, 1954 (SMA) inter alia sets out provisions pertaining to solemnisation of certain types of marriages in India and the formalities in respect thereof. Any two people in India irrespective of their religion may solemnise their marriage under the SMA. Accordingly, two persons professing the same religion or different religions may solemnise their marriage under the SMA.

People who have solemnised their marriage under their personal laws may also register their marriage under the SMA. For example, two Hindus may solemnise their marriage under the Hindu Marriage Act, 1955 or two Christians may solemnise their marriage under the Indian Christian Marriage Act, 1872 and thereafter register their marriage under the SMA.

If you are married under the SMA, your marriage would have been solemnised at the Office of the Marriage Officer in the presence of at least 3 witnesses, not including the Marriage Officer. You would also have been issued a marriage certificate which provides that the same is a Certificate of Marriage under Section 13 of the SMA.

My marriage was registered in Goa. From the marriage certificate, I am unable to say whether it is the "Portuguese Family Law" that applies. Is there a way to determine this or are all marriage registrations in Goa as per this law? Further, if the law applies, is there any recommendation on how to divide the various assets?

If, as a Goan, your marriage was registered as per the provisions of the Civil Code, your marriage certificate is likely to have been issued by the office of a Civil Registrar in Goa. If, however, you were married under the Special Marriage Act, 1954 (“SMA”), your marriage would have been solemnised at the office of the Marriage Officer in the presence of a Marriage Officer and at least 3 witnesses. Further, you would have been issued a marriage certificate which provides that the same is a Certificate of Marriage under Section 13 of the SMA.

Pursuant to the above, if you are a Goan and your marriage was registered as per the provisions of the Civil Code, then the law of succession applicable to you can be briefly summarized as under:

  1. A marriage under Goan Law is governed by a system called Communion of Assets, whereby, from the time of a person’s marriage, his spouse acquires half undivided right in his assets, unless an ‘Ante Nuptial Contract’ is executed to avoid such system of law.
  2. In the matter of gratuitous disposition of properties, i.e by Will or Gift, there is a prohibition by which no disposition can exceed half right of a person. This is called the disposable quota and the remaining part is called non disposable quota. If the said disposition exceeds the disposable quota, there is a compulsory reduction done in the inventory proceedings which is called inofficiousness. The donee’s legatees are expected to bring back the property gifted/bequeathed to them for the limited purpose of evaluation to see if it exceeds the disposable quota and this process is called “collation”. However a donor/ testator can specifically provide in the instrument that the gift/bequest will not be liable for collation to save the property from being brought back for collation.

Kindly note that in most instances, if one marries under the SMA, then with respect to matters concerning succession, the provisions of the Indian Succession Act, 1925 would apply, and in such cases one would not be governed by one’s personal laws.  However, we are unable to determine whether the SMA would over-ride the provisions of the Civil Code.  Therefore, while the general concepts of law of marriage and succession prevailing in Goa have been touched upon above, since these laws are entirely different from those in the rest of India, it would be advisable for you to consult a local lawyer practicing in Goa for further clarity on such matters.

If a child has been given for adoption (legally), is it mandatory to mention his/her name in the Will?

It is not mandatory to mention any child in the Will or give any bequest to any child, whether such child has been given up for adoption or not. Hence, you may choose to exclude any of your children from your Will including any child given for adoption. However, when making a bequest to only certain children or close family members, especially to those who would otherwise be considered to be one's legal heirs and have a right to inherit one’s property, and not to others, it would be advisable to give reasons as to why the others have been excluded, so as to reduce the possibility of the Will being contested.

Property/Real Estate

Can a property which is still not in my possession be mentioned in the Will?

Yes, you can make provision in your Will for any property (whether movable or immovable) even if it does not belong to you at the time of making your Will. At the time of your death, either of the following three eventualities may arise:

  1. The property has not been acquired by you, in which case the bequest of the same will not take effect;
  2. You have acquired the property during your lifetime but have disposed of the same prior to your death, in which case, again, the bequest will not take effect; or
  3. You have acquired the property during your lifetime and the same continues to belong to you at the time of your death, in which case the bequest made under your Will would be effective.

Alternatively, you may choose not to make provision for such properties in your Will and may subsequently update your Will upon such properties being acquired by you.

Can I bequeath a tenanted or Pagdi property?

Assumption: For the purpose of this query, we have assumed that you are a tenant and not the landlord of the premises being used as an office/ shop. We have also assumed that the office/shop is situated in Maharashtra and is governed by the Maharashtra Rent Control Act, 1999 (Rent Act). Transmission of tenancy is governed by the provisions of the Rent Act and tenancy cannot be bequeathed. The Rent Act provides that in the case of premises let for business, trade or storage, when the tenant dies, any member of his family who is using these premises with the tenant at the time of his death for those purposes, will become the tenant of these premises. In the absence of such a member, any heir of the deceased tenant may become the tenant, either in accordance with an agreement in this regard or as may be decided by the court.


What is the procedure to declare a nominee for one's property? For bank accounts, demat accounts, mutual funds, there is no doubt. However, I am not aware of how this is done for property.

We assume that when you are referring to ‘property’ you mean immovable property. The law relating to nomination with respect to immovable property will depend on the nature of the property, the state in which such property is located and your interest in such property.

In Maharashtra, immovable property would generally be in the form of (i) holding shares in a co-operative housing society with a right to use and occupy a flat in such society, (ii) ownership of an apartment in a condominium, (iii) ownership of land or building, or (iv) tenancy/ leasehold rights in relation to any premises. For the property referred in (ii), (iii) and (iv) above, there is no concept of ‘nomination’ provided in the statutes governing such property. However, if you hold shares in a co-operative housing society with a right to use and occupy a flat in such society, then you would have the right to appoint a nominee to hold your shares upon your demise. You would have to register such nomination by filing a nomination form with the society, and you may revoke / change such nomination at any time during your lifetime. You may contact the managing committee of your society for ascertaining the procedure followed by your society for recording nominations based on the bye-laws of your society.


What is the legal difference between Lifetime beneficiary and Primary Beneficiary? What extra/less rights accrue to both types?

The term ‘Primary Beneficiary’ refers to the person who is absolutely entitled to receive certain property bequeathed under a Will upon the death of the testator (i.e. the person making the Will). The term ‘absolutely entitled’ means that the person who inherits an absolute right to the property bequeathed (i.e. the legatee) is free to deal with the property in any manner that the legatee deems fit upon the bequest taking effect. However, an absolute right could be subject to a “lifetime interest”. The term ‘lifetime beneficiary’ is also not defined under the Act, although the Act contemplates the creation of a ‘life interest’ in favour of a particular individual, i.e. a legatee who inherits a “life interest” in property will only be able to enjoy the use of such property upon the inheritance taking effect but will not be able to deal with the same, i.e. will not be able to sell, transfer or create third party interests in such property
Bequeathing certain property to a particular individual (e.g. A) to enjoy during the lifetime of A and upon the demise of A to certain other individuals (e.g. B and C) would amount to the creation of a life interest in favour of A. The bequest of such property in favour of B and C would be an absolute bequest and would be in the proportion set out in the Will, but this absolute bequest would be subject to the life interest in favour of A. The right of B and C to inherit the property of the testator would arise immediately the death of the testator, however, the property in question would devolve on B and C only upon the death of A. The effect of such a bequest in favour of A means that A would not be entitled to deal with (sell or part with or create any third party interest in) the property during the lifetime of A. A would only have an ‘interest’ in the property and, depending on the provisions of the Will, A would have a right to enjoy the property - for instance, where such property comprises of immovable property, a right to stay in such immovable property or, where such property comprises of financial instruments, a right to receive dividends from such financial instruments. Such a right would subsist until the death of A and thereafter, the property would pass on absolutely to B and C.


My intention is to bequeath my residential flat to my only daughter. But I fear that a situation may arise after my death, where my daughter could be forced to sell the flat for the money by her in-laws. To act as a deterrent for this situation, I have nominated her only 90% share, balance 10% I have equally nominated to her maternal uncle and aunt. Whether this potential conflict will create a problem for transferring the flat in my daughter's name after my demise? Secondly, will this really be a deterrent for the subsequent flat sale if my brother and sister do not want to allow it? Thirdly is there a better way to prevent a forcible sale by pressurising my daughter?

We have assumed, for the purposes of this query, that the residential flat is situated in Maharashtra in a society registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 (“MCSA”). As per the MCSA and rules made thereunder, upon your death, the society must transfer your flat and shares in the society to your nominees. Therefore, in your case, if your daughter, her maternal uncle and aunt are nominees in respect of your flat, then the society would be bound to transfer the flat to them in accordance with its bye-laws.

However, please note that by virtue of the nomination or the transfer of the flat/shares to the nominee, the nominee herself/ himself does not become the owner of the flat/ shares. The purpose of the nomination is to make certain the person with whom the society has to deal, and not to create interest in the nominee to the exclusion of the beneficiaries or legal heirs of the deceased. Therefore, even though your flat will be transferred to your daughter, her maternal uncle and aunt as nominees, they will not acquire any interest in the flat per se and they will hold the flat in trust for the legal beneficiary of the same (i.e. your daughter under your Will). Accordingly, so long as your daughter, her maternal uncle and aunt hold the flat as nominees, neither will they be legally entitled to sell/ transfer the flat to any third party nor will your daughter’s in-laws be able to compel them to sell the flat to anyone. Eventually though, the nominees will have to transfer the flat to your daughter as beneficiary under your Will after which the flat will belong to your daughter. Once the flat belongs to your daughter, she will be legally entitled to transfer it to a third party and thus, may become susceptible to a forcible sale by her in-laws. Therefore, even after making maternal uncle and aunt nominees in respect of the flat, the purpose of protecting the daughter against forcible sale will not be achieved once it is transferred by them to your daughter.

In light of this, you may consider creating a private trust under your Will where the maternal uncle, aunt and your daughter would be the trustees and they would hold the flat in trust for your daughter as the sole beneficiary. This would serve two purposes – (i) your daughter would be legally entitled to enjoy the use of the flat, and (ii) the flat will be held in the name of the three trustees and will be protected from forcible sale. You may provide in your Will that, amongst other things, the trust will be dissolved upon the expiry of a particular number of years after your death (“Trust Life”) after which the flat will vest in the sole beneficiary, i.e. your daughter. You would have to, however, provide for the eventuality of the maternal uncle, aunt or your daughter either pre-deceasing you or passing away before expiry of the Trust Life.

However, even upon having settled the trust as stated above, your daughter, as the sole beneficiary, may by her consent (assuming she is competent to contract) modify the directions given by you to the trustees under your Will, and sell the flat prior to the Trust Life. Therefore, even at this stage, your daughter will be susceptible to a forcible sale by her in-laws. In addition, you may also note that any contract entered into by a person under coercion would be voidable at the option of that person. Therefore, your daughter may avoid such a contract for sale of her flat if she has been coerced into entering into such contract. She also enjoys legal protection against domestic violence by her in-laws under the Protection of Women from Domestic Violence Act, 2005 and appropriate provisions of the Indian Penal Code, 1860.

Lastly, please note that the above is only general advice based on the facts narrated by you; it would be highly advisable for you to consult a legal as well as tax consultant for professional advice on the matters explained above in order to further safeguard your daughter’s interests.

Can the ultimate benefciary (Final Legatee) sell the property bequeathed to her/him if the Lifetime Interest Holder agrees to the sale during his/her lifetime?

Since the Lifetime Interest Holder has only a life time interest in the property, he cannot sell, transfer or otherwise alienate the property. Similarly, upon the Testator’s death, only “a right to receive” the property has vested in the Final Legatee and till such time that the Lifetime Interest Holder is alive, the Final Legatee also does not have the right to sell, transfer or otherwise alienate the property.

If the Lifetime Interest Holder and the Final Legatee want to sell the property, they could consider doing so jointly and with the consent of all the legal heirs of the Testator, including the legal heirs of the Final Legatee (if any). However, it has to be borne in mind that such a sale is not free from challenge, especially from the representatives / legal heirs of the Final Legatee who may not have been born at the time of the sale but are born at a later point of time and depending on the circumstances then existing could have a share in the property in question.


If a testator has multiple immovable properties then Probate is required for all the properties separately or only one probate copy is sufficient for all the immovable properties?

When obtaining a probate, the executor would need to consider the place where the Will has been made, the value of the properties sought to be bequeathed under the Will and where the properties are situated. A probate, wherever necessary, may be granted by the district judge in whose jurisdiction the testator, at the time of his death, had a fixed place of abode or any property (movable or immovable). In the event all the immovable properties are situated in the same state and the district judge certifies that the value of any other property and estate of the testator, beyond the limits of the state within the jurisdiction of the district judge, does not exceed Rs.10,000, a probate granted by the district judge would have effect throughout India. However, where the property (movable or immovable) outside the state in which the district judge has jurisdiction has a value of Rs.10,000 or more, or one or more of the immovable properties (having value of Rs.10,000 or more) are situated in different states in India, then the probate granted by the district court (which otherwise would have jurisdiction) would not be conclusive beyond that state. In order to have the conclusive nature of grant throughout the country, a petition would need to be filed before the jurisdictional High Court.

It is noted that the power given to the courts to make an all-India grant is discretionary, which means that either the High Court or the district court can, in granting the probate, limit the effect of the grant to properties inside the state where the court is situate.


Can we bequeath an ancestral property? Property inherited from father and currently completely transferred to my name? Can anyone claim from it?

For a Hindu male and governed by the Mitakshara school of law Section 6(3) of the Hindu Succession Act, 1956 (as amended) provides as follows:

Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and
  1. the daughter is allotted the same share as is allotted to a son;
  2. the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
  3. the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter , as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

The explanation to Section 30 of the Hindu Succession Act, 1956 (as amended) also clearly states that the interest of a male Hindu in a Mitakshara coparcenary property shall notwithstanding anything contained in the Hindu Succession Act, 1956 (as amended) or in any other law for the time being in force, be deemed to be property capable of being disposed of by him.

Therefore, coparcenary property can be bequeathed on the basis of a notional partition. Technically, no one should be able to claim, unless such bequest is challenged and an order is decreed in favour of the person challenging the bequest.

It may however be noted that in terms of the provisions of the Hindu Adoptions and Maintenance Act, 1956, a Hindu cannot by Will, so dispose of his property so as to defeat the legal rights of his wife or any other person to maintenance.

Financial assets

If a demat account also contains Bonds, ETFs and Mutual Funds, will they be treated differently from equity shares for transmission? If yes, how?

As per the NSDL FAQs, Bonds, ETFs and Mutual Fund units can be dematerialized and held in a single demat account and these would comprise “securities” for the purposes of a depository and demat account. Bye Law 9.10.2 of the NSDL Bye Laws states that “In case where the deceased was one of the jointholders in the Client account, the surviving Client(s) shall be the person(s) recognised by NSDL as having any title to the security balances in that joint Client account”. Bye law 9.11.2 of the NSDL Bye Laws states that “The securities held in such account shall automatically be transferred in the name of the Nominee, upon the death of the Nominating Person, or as the case may be, all the Nominating Persons subject to the other Bye Laws mentioned hereunder.” Similar provisions in Bye law 13.9 of the CDSL bye-laws (in particular 13.9.3 and 13.9.4).

Further, Bye law 9.11.7 of the NSDL Bye Laws states that “Notwithstanding anything contained in any other disposition and/or nominations made by the Nominating Person(s) under any other law for the time being in force, for the purposes of dealing with the securities lying to the credit of deceased Nominating Person(s) in any manner, the Depository shall rely upon the last nomination validly made prior to the demise of the Nominating Person(s). The Depository shall not be liable for any action taken in reliance upon and on the basis of nomination validly made by the Nominating Person(s).” Therefore, in the event of the death of a joint holder, the surviving joint holder(s) become entitled to the balances remaining in the demat account, if any. The treatment of Bonds, Mutual Funds including Exchange Traded Funds, which are dematerlised, is not different from that of equity shares which are held in dematerialised form. They are treated the same way equity shares are treated for the purposes of transmission.

However, please note that if a Mutual Fund or Bond is bought in physical form and then dematerialised, and in the event that the nominee of the Mutual fund or Bond is different from the nominee of the demat account, the nominee of the demat account would take precedence and the nominee of the Mutual Fund or Bond will no longer be recognised as the nominee. The depository will recognise the nominee of the demat account as the nominee of each individual instrument.

(Kindly note that the above response is dated and needs to be reviewed in light of Salgaonkar-Ghatalia judgement by the Bombay High Court on 31st March 2015. You can access the details of the judgement from the following link http://indiankanoon.org/doc/95245152/.)

In a demat account jointly held by A and B, C is the nominee and D is the beneficiary in the Will of A. After A's death whose claim will prevail?

For the purpose of this response, we have assumed that the demat account pertains only to equity shares that are held jointly by A and B. We are also assuming that C is/was jointly nominated by A and B. As per the applicable provisions of the Companies Act read together with Schedule 1 Table A of the Companies Act 1956 and Schedule 1 Table F of the Companies Act 2013 (the latter which is still to be notified), upon the death of a joint holder of shares in a company, the surviving joint holder(s) shall be the only person(s) recognized by the company as having any title to the deceased joint holder’s interest in the shares.

Further, a nominee becomes entitled to the interest in the shares only in the event of death of all the joint holders. Furthermore, in the event that there is no nominee or if the nominee has pre-deceased the original holder(s), then upon the death of the last surviving joint holder and as per the laws of succession in India, a beneficiary under the Will of the last surviving joint holder, if any, will be entitled to the interest in the shares and if the last surviving joint holder had died intestate (without having drawn up a Will), then his legal heirs will be entitled to the interest in the shares.

Furthermore, in the event that there is no nominee or if the nominee has pre-deceased the original holder(s) and all the joint holders die simultaneously, then the beneficiary under the Will, if any, of the first named joint holder, will be entitled to the interest in the shares and if the first named joint holder had died intestate, then his legal heirs will be entitled to the interest in the shares. Even as per the applicable provisions of the NSDL bye-laws, in the event of the death of a joint holder of a demat account, NSDL will recognize the surviving holder(s) as having title to the security balances lying to the credit of that account. Further, in the event of death of all the joint holders of a demat account, NSDL will transfer the securities in that account to the nominee(s).

Therefore, in the instant case, upon the death of A, it is B who will be recognized by the company as having title to A’s interest in the shares. Upon the death of B (on the assumption that A has pre-deceased B), it is C who will be entitled to the interest in the shares. Had C died in the lifetime of A and/or B and on the assumption that A has pre-deceased B, then it is B’s named beneficiary or legal heir(s), as the case may be who will be entitled to the interest in the shares.

Probate

If testator has his permanent address in "X" state and immovable property in "Y" state. Where will the Executor get the Probate? At the place where testator has permanent address or in the state where he was holding the property?

When obtaining a probate, the executor would need to consider the place where the Will has been made, the value of the properties sought to be bequeathed under the Will and where the properties are situated. A probate, wherever necessary, may be granted by the district judge in whose jurisdiction the testator, at the time of his death, had a fixed place of abode or any property (movable or immovable). In the event all three immovable properties are situated in the same state and the district judge certifies that the value of any other property and estate of the testator, beyond the limits of the state within the jurisdiction of the district judge, does not exceed Rs.10,000, a probate granted by the district judge would have effect throughout India. However, where the property (movable or immovable) outside the state in which the district judge has jurisdiction has a value of Rs.10,000 or more, or one or more of the immovable properties (having value of Rs.10,000 or more) are situated in different states in India, then the probate granted by the district court (which otherwise would have jurisdiction) would not be conclusive beyond that state. In order to have the conclusive nature of grant throughout the country, a petition would need to be filed before the jurisdictional High Court.

It is noted that the power given to the courts to make an all-India grant is discretionary, which means that either the High Court or the district court can, in granting the probate, limit the effect of the grant to properties inside the state where the court is situate.

Others

How much time does a beneficiary get to transfer the assets in his / her name after the testator’s demise?

The Indian Succession Act does not specifically provide for a limitation period to give effect to bequests made under a Will. Certain provisions to keep in mind are as under:

  1. Conditions of Will: the property/ assets must be distributed in accordance with the time frame mentioned in the Will, if any.
  2. Probate: If a probate of the Will in question is required to be obtained, normally the executor will transfer the assets only after obtaining the probate from a competent court.
  3. Under section 104 of the Indian Succession Act, the general rule is that if the legacy is given in general terms and the Will does not specify the time when the legacy has to be paid, the executor/ legatee is deemed to have a vested interest from the date of the death of the testator.
  4. Lapse of legacy: under section 105 of the Indian Succession Act, the general rule is that if the legatee does not survive the testator, the legacy cannot take effect and shall lapse and form part of residue of the testator’s property, unless any other intentions of the testator can be proved from the Will.


Can a person who has been named as an executor indicate his unwillingness to execute if he is finding the task too onerous? Is there any penalty on the executor if he does something like this? Can he walk away after he has filed the Will for probate?

A person who has been named as an executor can indicate his unwillingness to execute the Will or renounce being the executor of the Will. He may do so, even if he has filed an application for obtaining a probate of the Will provided he has not intermeddled with the estate of the testator or the probate has not been granted. He can renounce his executorship either orally in the presence of the Judge hearing the application for probate, or by a written document signed by him. While there is no monetary penalty for renouncing executorship, the executor shall not be entitled to any bequest made to him in his character as an executor under the Will (and not as a mark of personal regard) if he so renounces.


What is a codicil?

A Codicil is an instrument made in relation to a Will that has already been drawn up, which Codicil explains, alters or adds to what is contained in the Will and which is deemed to be part of the Will. The effect of a Codicil is to bring the Will down to the date of the Codicil and to effect the same disposition of the testator’s property as would have been effected if the testator had, at the date of the Codicil, made a new Will containing the same disposition as in the original Will with the alteration introduced by the Codicil.

All provisions relating to signature, attestation etc. of Wills, also apply to Codicils. A revocation of a Will need not lead to revocation of the Codicil.

If someone is not able to sign the will draft due to old age, can thumb impression do? If yes, which hand (right or left)?

For effective execution of a Will, the conditions mentioned in Section 63 of the Indian Succession Act, 1925 needs to be fulfilled.

(Section 63: Execution of Unprivileged Wills: Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or a mariner at seas, shall execute his Will according to the following rules:

  1. The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
  2. The signature or mark of the testator or the signature of the person signing for him shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
  3. The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary)

  1. The instant scenario, we would like to highlight the fact that, for the purpose of attestation, the following conditions as detailed in Sec 63 (c) of the Indian Succession Act must be satisfied:
    1. The Will must be attested by at least 2 witnesses.
    2. Each of these witnesses:
      1. must either see the testator sign or affix his mark to the Will or must see some other person sign the Will, in the presence and by the direction of the testator, or
      2. must receive from the testator personal acknowledgement of his signature or mark or of the signature of such other person.
    3. Each of them must sign the Will.
    4. They must sign in the presence of the testator.
    If any of the four conditions mentioned above is not satisfied, then the attestation is bad and the Will is invalid.
  2. As discussed in the case of Annu Bhujanga Chigare–vs- Rama Bhujanga Chigare, it is specified that the word “sign” in Section 63 should be interpreted in the light of its definition in the General Clauses Act and that there is no repugnancy in the context.

For clarity, the definition of “Sign” as per the General Clauses Act, 1897 means: “Sign with its grammatical variations and cognate expressions, shall, with reference to a person who is unable to write his name, include, "mark", with its grammatical variation and cognate expressions”.

Therefore, it can be deduced that mark includes thumb impression as well.

The Act seems to be silent on which thumb should be used in order to make the impression.


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