rajshah 05 July 2016

Ensure my 2 sons (wife 1) are my legal heirs

BACKGROUND

I am Hindu and have 2 sons from my 1st Wife and my only source of income is Rental income from my immovable property
My 1st Wife passed away In 2010
Now I plan to get married again (court marriage )
My 2nd Wife already has 2 sons from her 1st Husband
I want to ensure that after me 2 sons from my 1st Wife become the only legal heir ,and all my property a to be passed to my 2 sons only
I want to ensure that my 2nd Wife and 2 sons from my 2nd Wife can never claim of the assets I have as I will Make separate FD's for my 2nd Wife
Also till the time I am alive I want to safeguard myself hence in all my Properties where only my name is there I will add my 2 sons name and this means me and my 2 sons all would be 33% owners of each of the properties

Scenario 1 ( Have 2 Questions)

Now i am planning to Add my 2 sons name in all my properties so that each of us become 33% owner of the property.

This will make me 33% owner in all my property .

1. Will 2 Children of my 2nd Wife will be considered as legal heirs and have any right in 33% of my property?

2. Who will be my legal heirs and what will be each 1's share (%) in my 33% property?

Scenario 2 ( Have 3 Questions)

Now if i make my register will and mention that my 33% rights in property to be transferred to my 2 sons only.

Also i plan to create specific trust of 33% of my property and make myself and my 2 sons as trustees and mention in Trust deed that class 1 beneficiary will be 100% myself initially

and After me Class 2 beneficiaries will be my 2 sons only

1.By making will and creating specific trust am i ensuring that all my properties will go to my 2 childrens only?

2. Also can my 2nd wife in future create 1 more will of mine in her favour and register it (assume i am not 100% fit in that case )

3 Consider under her influence i register my 2nd will in her favour and register it and at the same time since I have already made specific trust earlier and clearly mentioned in the trust that my 2 sons are the trustees and will be the only beneficiaries what will then happen?

Reply Follow

2 Replies

JustAdvisor (IT) 05 July 2016

Presumption

Property is self acquired

Scenario 1

Answer 1: No - Stepsons are not legal heirs. Basis - Lachman Singh v Kirpa Singh. Although the case law is for a female hindu, the ratio is as quoted in judgment "Ordinarily laws of succession to property follow the natural inclinations of men and women". So in my opinion it should apply to a male Hindu as well. But, to be on a safe side, it would be wiser to make a Will.

Answer 2: Your 33% share would devolve equally on your mother (if alive), 2nd wife, both biological sons.

Scenario 2

Why are you so insecure - just create a Will - it requires two attesting witnesses and a Doctor's fitness certificate. Register it. And you need to sign it. If for the sake of argument, your wife gets the will signed by you using her influence when you are not fit, the signature would differ (because of lack of fitness), and the same can always be challenged. I feel once you have parted with 67% of your property in favor of your biological sons and rest 33% by a Will, you have your interests taken care of.

However, I would advise you to engage an able local counsel who would give you a considered opinion.

Kumar Doab (FIN) 05 July 2016

The other threads by querist:

https://www.lawyersclubindia.com/forum/Ensure-my-2-sons-wife-1-are-my-legal-heirs-139299.asp

https://www.lawyersclubindia.com/forum/Ensure-my-2-sons-wife-1-are-my-legal-heirs-139345.asp

Pls continue on the one and original thread.

The will (wish) of the testator (owner) stated in last and valid WILL is supreme.

The other ways thought of by you are the possibilities.

As already suggested that engage a very able counsel and show all docs on record and considered opinion.

Your able counsel can draft to defend your interest.

The definitions of son and daughter in the succession laws do not include stepsons and stepdaughters. Consequently if a divorcee remarries, her children from the previous marriage shall not inherit the property of her second husband but the second husband shall inherit the property of their mother. Even a child adopted by the woman before her marriage will only be a stepson. The gist of the matter is that a man’s property can be inherited only by children fathered by him and not by any other man. The second husband will at the most accept the woman but will have nothing to do with her children. He cannot be saddled with their responsibility at all.

Bombay high Court has explained the matter when Indian Succession Act applied, and cited from in following judgment:

Mr.Noel Dominic Pereira Vs Mrs.Pamela Ethel Kuhn & ors

And has cited that it has been similarly held under the Hindu Succession Act that sons do not include step-sons Lachman Singh vs. Kirpa Singh & ors