The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions shared in an article in the following Q&A which was published by the Mint Newspaper on 04th November, 2020 and the online edition of the same can be found here.
I made a will and got it duly registered, declaring my wife as the executor and trustee. After her demise, my daughter and son will be the executors and trustees. Both my children will have absolute discretion to whom they give their shares during their lifetime or after their demise. Is the format alright?
While the approach and scope of each will is a matter of personal choice, and while the said format is alright, keep a few things in mind. Your will gives complete discretion to your wife and later children as the executors, including the power to give the estate to themselves. This power does have the scope to be misused and result in conflict.
In your wife’s case, as she is the sole executor with this freedom, this is still fine. In your children’s case as joint executors, this may cause issues. If you want to preserve their discretion, it may be better to add some guiding factors on how the estate is to be distributed. For example, they can only give 50% of the estate to themselves; or in case they want to give to any third parties, there should be joint consensus between both of them. In our experience, the more clarity a will has, the better it is. Do consider if you can be more specific on how key assets such as the family house should go under your will.
If you still prefer the wide discretion being given to your children, you can consider signing a “letter of wishes” to be read along with your will. This sets out non-binding but persuasive guidance to your executors on how they should apply this discretion.
If you want to amend your will to effect these changes, making a fresh will is better. You will need to withdraw the current will from the sub-registrar’s office, and submit a new one. Destroy the older will physically as well.
To transfer your immoveable property during your lifetime to wife or children, a gift deed would be required, plus applicable stamp duty and registration charges.
My father had acquired a property which was partitioned among brothers. He wrote a will in 2013 that his property belongs only to his son. I have a younger sister who gave a document saying she is releasing her rights on that property to her brother willingly. My father passed away in 2017. A recent Supreme Court judgment said the daughter has equal rights on ancestral property. Is my sister still eligible for it?
—Name withheld on request
When a division or a partition happens in a joint Hindu family, an ancestral property becomes “self-acquired” in the hands of the family member who receives it. Accordingly, when the ancestral property was partitioned between your father and his brothers, his share (granted to him at partition) would be regarded as self-acquired.
In cases of self-acquired property, a testator has the right to exclude any family member he deems fit from his will. It is up to his discretion who should inherit his property and in what proportion. Accordingly, your father’s bequest in his 2013 will is valid and the property should vest in your name (if the will identified you as the sole beneficiary). Your question does not state if your father’s will was probated, so we are assuming that his circumstances required compulsory probate and the actual transfers of title have taken place. In case this is not done, we recommend the relevant executor(s) get the will probated and the property records mutated.
Further, as the property was converted to self-acquired, the release document given by your sister is not relevant. The recent Supreme Court judgment is limited in its scope to Hindu Undivided Family ancestral properties (and not self-acquired properties). Still, it may be worthwhile looking at the terms of the same closely with your counsel to ensure there are no issues that pop up.