Frequently Asked Questions On Will

QUERY #1

My Grandfather who is 90 years old as of now, has five children, my mother being one of them. She passed away two years back.

Grandfather made a will to bequeath all his self acquired property to two of his children.

Can we challenge this will and demand that the property be divided equally between all the children?

ANSWER:

The short answer to your query is NO. You cannot challenge the will made by a person.

The legal heirs might have had a claim on the property if the individual had died intestate or if the property in question was ancestral, as per the Hindu Succession Act of 1956. If the property was ancestral, then his successors for three generations would have had a claim towards the property and could not have therefore created a will on it, and if that happened, could be challenged in a court of law. The only other way the legal heirs can claim a property of their ancestor is if they died intestate, upon which the property would have devolved according to the Hindu Succession Act of 1956.

The self acquired property of an individual is absolutely his own, meaning he has complete rights over it including that of selling it, gifting it, or writing a will for it, as per the Hindu Succession Act, 1956. Therefore, no person can challenge the will made by a person for a property that is self acquired as that person shall have no right over it.

I hope this helps. Thank you for your time and patience!

QUERY #2

How is inherited property treated with regards to writing my will?

ANSWER:

The short answer to your question is YES, you may treat the property as your own as you have absolute ownership over it.

A property can be inherited by an individual either through the intestate death of their ancestors or through the will created by these ancestors. The laws related to both reasons are contained in the Hindu Succession Act of 1956 and the Indian Succession Act of 1925 respectively. In both cases, the property will be considered as the self acquired property of the inheritor.

Any person of sound mind who is not intoxicated and can understand the consequences of his actions at the time of creation can write a will on his property as per the Indian Succession Act of 1925. Therefore, since the property in question is treated as a self acquired property, you are free to write a will on it as it is your own property and you are its absolute owner.

I hope this helps. Thank you for your query!

QUERY #3

If a person who wrote a will bequeathing her property to her brother died after the death of this brother, can the property that was to be bequeathed to her brother be inherited by his son? Or can the testator's mother inherit this property?

ANSWER:

The short answer to your question is NO. The son cannot inherit the property.

The laws related to succession and will are contained in the Indian Succession Act of 1925. According to the same, any person of sound mind may create a will as long as they are aware of the consequences of their action, irrespective of whether they are deaf, dumb, blind, etc.

Section 105 of the Indian Succession Act is of significance here as it states that if the legatee does not survive the testator, the legacy lapses and becomes part of the residue of the testator’s property. This means that in this case, since Ms. B created a will with Mr. A as the sole beneficiary, the legacy which was to be bequeathed to Mr. A lapses since he died before the testator, Ms. B.  Unless the will explicitly mentions that the property will be bequeath to someone else if the legatee does not survive the testator, the legacy will lapse.

If he had died right after the death of Ms. B, then according to section 109 of the same act his children could have inherited this property, as the lineal descendants of a legatee can inherit this property if the legatee died immediately after the death of the testator.

Since the person to whom the property was to be bequeathed is not in existence at the time of the testator’s death, such bequest shall be deemed to be void as per section 112 of the Indian Succession Act. It is therefore possible that the person be treated as dying intestate in which case the property shall devolve upon their legal heirs as per the Hindu Succession Act.

I hope this helps. Thank you for your time and patience!

QUERY #4

My father first registered a will on one of his sons for an immovable property, after which without canceling it, he created another will giving this property to his another son. The same will does not have any mention about the cancellation of the first will. Before his death, he canceled the second will.

In this situation, can the first will that was not canceled, become valid?

ANSWER:

The short answer to your question is NO. The first will shall not be valid.

The laws regarding wills are contained in the Indian Succession Act of 1925, according to section 59 of which any person of sound mind may create a will pertaining to their property as long as they are aware of the consequences of their action, meaning a deaf, dumb, or blind person may also create a will if they know what they are doing.

Here, the first will was created with one of the sons as the legatee for an immovable property. Later on, another will was created on the same property with the legatee being the other son. Here, even if the first son was also mentioned in the second will as one of the legatees, it would be assumed that the will was created with the intention of canceling the first one since the property to be bequeathed are the same.

Section 70 of the Indian Succession Act pertains to the procedure for revoking an unprivileged will, wherein it is mentioned that the testator may revoke a will in the following ways:

1. By marriage;
2. By another will or codicil;
3. By some writing to declare their intention of revoking the said will which is executed in the same manner as an unprivileged will is required to be executed;
4. By burning, tearing, or otherwise destroying the will by the testator or by someone else in his presence and direction with the intention of revoking the same.

Here, it is evident that a will can be revoked by executing another will, and since the second will was created to bequeath the same property as in the first and although it does not explicitly mention the intention to revoke the first will, it is logical to assume that it was the intention of the testator to revoke the first will by creating a new will on the same property with a different legatee.

Therefore, since the second will is already canceled, it shall be assumed that both wills are canceled and therefore the person will be assumed to have died intestate.