Writing of Will for future property

Mere mutation neither brings nor destroys the value of a legally valid title, at the most it may be treated as evidence of possession.  Writing a will is an independent task, and enforceability enters into picture after her death.  So, first get the will executed through a professional advocate, with two independent witness and get the same registered on top priority.

Point is that a property that is not mutated due to some bureaucratic wrangling does not take away the ownership or title over the property to your Aunt. She can very well write a Will duly mentioning the available details of the property in the schedule. You may help her to get the administrative problems solved by going to the office/s concerned and get the matter sorted out, during her life itself.

She will have to be titleholder (owner) of the property being bequeathed, where mutation has no affect/ relevance.

You are complicating and confusing the facts vis-a-vis issue/ subject.

Whether your Aunt's brother died intestate in which case whether she and her sister are the only legal heirs and they partitioned with a Registered Partition Deed  or whether he left a Will in her favour alone?

What are the hurdles in mutating the property in her favour which you are terming as administrative?

A will is primarily a legal declaration which any individual makes regarding the manner in which they would like for their property to be managed and distributed after their demise

All wills are required to clearly bear the name of the testator and the complete details pertaining to the assets and property they possess. 

It is important to note here that any will made beforehand by any testator can easily be revoked during the lifetime of the said testator and further it is also possible for the testator to make more than one will during his or her lifetime. This is especially important under instances wherein the properties prescribed under the will get disposed off during the lifetime of the testator itself or in cases wherein the beneficiary predeceases the testator. 

Hello!  

Mutation of property is done so that the name of the buyer or the inherited person is updated in the government records to prevent any confusion and the property tax is paid by the person who holds the title of the property.   

According to the facts mentioned by you, it can be noted that she is the sole heir of her brother’s property and if he has died intestate, his sister will receive the whole property, and mutation of such property will be required. The supreme court while declining a special leave filed by Bruhat Bengaluru Mahanagara Palike held that mutation does not confer the title of the property on anyone and the same has to be established independently.  

Therefore, your aunt can have ownership of the property without mutation and it can be proved in the court through a declaratory suit. Since the property is inherited by her, she can make the will of the property in your name and mutation will not affect such will.  

Regards  

Vasundhara Singh  

Inheritance takes place by operation of law. On the death of a person his property devolves upon the legal heirs. It makes no difference if the property remains to be mutated in the name of the legal heirs. 

In the present case, the testor can execute the Will for the properties which are vested with her by inheritance. Any future complexity could be taken care of if the aspect of inheritance is properly described in the Will. 

Dear Arka,

Thank you for your query! I am Aadil and I will try to answer your question.

The short answer to your question is YES. You may write the will for a property that will be under the ownership of the testator in the future. 

The laws relating to the creation and execution of a will is governed by the Indian Succession Act of 1925. According to this act, any person, irrespective of the fact that they are deaf, dumb, or blind, or has any other disability, can create a will if they are aware of the consequences of their action. The only requirement is that the testator should be of sound mind so as to be aware of the consequences of writing a will and bequeathing property to someone.

Here, since the property is going to be under the ownership of the testator in the future, and is not so at the present moment only due to it being stuck in administrative faults, it is perfectly valid to write a will where the property in question shall be bequeathed to you, and the only requirement to do is to provide valid details of the property so that it can be identified by the  court when the will is given for probate.

It must be noted that section 2(h) of the Indian Succession Act defines a will to be a legal declaration of the intention of a testator with regard to his property which he desires to be carried out after his death. It is evident from the above definition that a will can be made only for a property that is under the ownership of the testator, and no provisions exist for a property that will be under the ownership of the testator in the future.

Therefore, after the will is created, it must be ensured that the property be transferred to the ownership of the testator as soon as possible, as otherwise, the terms of the will will be void with respect to this specific property.

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

Regards,

Aadil