• Seek advice on "will" during mutual divorce

I am going to marry a person who is taking divorce from his wife mutually. He is giving huge amount in terms of alimony and child maintenance to his wife. Petition is filed and 6 months waiting period is given.

But now his wife has demanded that before the final hearing he should write a "Will" that in his absence all his money, investments or property should go to his child from first marriage. And his wife wants to attach this "will" document with the final divorce petition.

Now obviously such a "Will" is going to effect my future and child out of my marriage with him. Hence, I want to know what exactly needs to be done to make my and my child's life secured in my marriage with him so that in his ABSENCE or DEATH, his ex wife or his first child doesn't claim from anything he leaves for me as a husband: 

1. We have a plan to buy a property which he will keep in my name only but he will take the home loan. But the lawyer he consulted told him that though the flat will be in my name but the EMI money will be from him even if he transfers the money to my savings account in cash and then pay the loan EMI from my savings account. Hence, on the basis of the "Will" attached with divorce paper, his ex wife or first child can still claim from the property in his (husband's) absence or death as it will be my husband's money.

a - what should I do in this situation?

b - he earns 10 times more than me, so even if he transfer money in cash to my account every month, I can never show that money as my income because my official salary is very less. How will I justify saying it's my money from which I paid the home loan EMI, or have done any other investment if in his absence, his ex -wife or first child claims from my savings or property which is in my name?

2. He has a plan that every month, he will withdraw his salary and deposit that in my personal savings account as cash and from my savings account, I will pay towards mutual fund in my name, or towards PPF in my name or any other investments which will be in my name so that he will not have any investments or MF in his name. But all this money will be his money that he will first Transfer to my personal account in cash and then we will pay towards the other investments from my account. So in his absence, can his ex-wife or first child still claim from these assets or investments which will be in my name on the basis of the "Will" attached with their divorce paper by claiming that it was her ex-husband's or her child's father's money? If yes, what should I do to save those investments or property from their claims?

Please suggest different ways so that I can save our finances, property from his ex-wife & his first child if they claim anything in his absence.
Asked 11 days ago in Family Law
Religion: Hindu

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12 Answers

1) as advised don’t transfer any funds from your account for purchase of any property in wife name 

 

2) it can be argued that source of funds for purchase of property was husband and daughter can claim share in property 

 

3) although will can be revoked at any time daughter can still challenge subsequent will made by father 

 

3) husband should not take any home loan for purchase of property n second wife name 

 

4) if your official salary is less then you don’t have any source of funds for purchase of property 

 

5) Ex wife has no’s hare in ex husband property 

 

6) don’t agree to any such clause in consent terms for divorce wherein all property owned by biological father would devolve on his first daughter only 

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

In my opinion,  attaching Will with the mutual divorce is not worthwhile.   But please keep this point in mind that Will come into existence after the death of your husband.  During his life time, he can sell, gift, mortgage etc. the property in any manner he likes.  He can also change the Will as many times as he wishes and the last Will would come into force and in that event Will filed with the Will shall be null and void. But see the Will should not be irrevocable. 

Dalip Singh
Advocate, New Delhi
942 Answers
23 Consultations

5.0 on 5.0

- As per law , a wife is not having any right in the property of her husband , and only after the demise she can claim a share in the property . 

- Further , a WILL can be written by a person any time , and also change multiple times , hence even he will write a WILL in favour of her child then also your husband can change the WILL , and only last WILL is legally valid. 

- Further, a WILL is executed only after the death of a person , it means that your husband can sell that property any time or transfer the same in your name as well. 

- Further, a WILL should be probated for gaining legal status, and a simple written Will having no legal value in the eye of law , and Probate can be possible only after the death of testator. 

- Hence , even after writing a WILL , her child will not get anything during his life time. 

Mohammed Shahzad
Advocate, Delhi
8498 Answers
92 Consultations

5.0 on 5.0

The Will shall be enforceable only after the death of the testator.

The testator has full rights to revoke or cancel the Will anytime after it was executed.

Since the ex-wife is insisting on the property only after his lifetime, let him transfer all his properties to his new spouse and children born out of remarriage without leaving any property on his name at the time of his death.

1.  It is not possible to claim property which was not on his name.

a. You can challenge the same and object to her claim and get her claim dismissed when a claim arises.

b. Your doubts are beyond imagination for which there is no ansewr, you may have to deal with such issues when the situation arises based on the prevailing circumstances.

2. The answers given above are suitable to this question too. . 

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

He doesn't have to make such will it's illegal. He has to just pay for his future and educational expenses

Prashant Nayak
Advocate, Mumbai
24936 Answers
58 Consultations

4.4 on 5.0

Ask him to mention in WILL to use a word in sentence this is "very first WILL"  and never ever used the word "this is last WILL" .

 

Plus you both can open private family trust account as per the Indian Trust Act. And you will be beneficiary of that account. Your husband can run the trust.

Ganesh Kadam
Advocate, Pune
12219 Answers
165 Consultations

4.9 on 5.0

Once he transfer any amount to your account, it is your money and the property purchased on your name will be your property as such his ex wife or child will not get any right over your property. Any WILL he execute infavour of his ex wife or child will also contain description. so they  cannot claim anything more than what is mentioned in that WILL. so they cannot claim your property basing on the said WILL.

Sricharan Telaprolu
Advocate, Hyderabad
130 Answers
36 Consultations

4.9 on 5.0

1) on liquidation of investments spouse should not open account and transfer funds to your account for purchase of flat . the paper trial can be traced and ex wife/ daughter  can take the plea that source of funds for purchase of property is from ex husband account 

 

2) husband can with draw cash and give it to you for house hold expenses and you can make investments in your child name from your bank accounts 

 

3) if his daughter challenges will it would be converted into testamentary suit and take over 10 years to be disposed of 

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

Dear client, 

1) It does not seem safe and the wife can look into it. 

2) yes 

3) it can be used to nullify. 

Thank you

Anik Miu
Advocate, Bangalore
3099 Answers
31 Consultations

4.9 on 5.0

1. His ex-wife or child do not have any business to poke or interfere in your affairs, their investigation will not have any legal value neither their claim based on their investigation would be valid, your imaginations or unnecessary.

2. No, they cannot claim anything from you because they are no where related to you, besides, the child is a minor hence the child  cannot claim anything as of now and also it cannot claim anything after it attains majority by age, because the agreement is that the properties should be transferred to him after your husband's death only, therefore whatever residual property is available he may claim only that as per Will, he cannot claim anything beyond that and such claim would be invalid and non maintainable.

3. The phone call recordings are not admissible as evidence in court of law.

 

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

He can make will anytime if he wants to for his self acquired property as the same is permissible under law. His son will also have right in his property even after divorce as he is the legal heir of the said property unless the father doesn't want you give anything to him

Prashant Nayak
Advocate, Mumbai
24936 Answers
58 Consultations

4.4 on 5.0

1. As per law, his ex-wife and child having no right to interfere in your marriage , and if they will do any such act , then you can lodge a compliant against them legally. 

2. Even there is WILL executed by your husband , then also the child cannot claim any right during the life time of your husband . 

- Further, being a minor he cannot claim any right without her mother 

3. As per law, a WILL can be write repeated number of times and only last WILL is legally valid , hence even your husband has written any WILL at the time of mutual divorce then also after cancelling the same or even without cancelling , he can write a new WILL in your favour . 

Mohammed Shahzad
Advocate, Delhi
8498 Answers
92 Consultations

5.0 on 5.0

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