My parents have prepared their wills separately. Their Wills have been duly notarised, but not registered.
1. The property mentioned by my father in his Will has since gone for re-development. It would mean that the flat number, & therefore the address mentioned in the Will, will change. Does he need to make a new Will?
2. Should they register their Will?
3. My parents have 2 children - my elder sister and me. My parents are not much happy with my sister. They had given her share during her marriage in cash and jewellery. My mother also gave half of her provident fund after retirement. My sister and her husband are well to do with ultiple investment properties. When I was seriously sick, in exchange for taking care of me, she pressurized them to make a Sale Deed to give their flat to her. This deal was properly registered. As fate would have it, I fully recovered. I not only paid her back for my treatment, but also kept giving her money everytime she asked. I am talking of lakhs of Rs. here. After learning what she had done, we did all we could, to get her transfer the house back to my father. After much reluctance and 5 years of waiting she reluctantly transferred the flat back to my father, via a Sale Deed (again registered). Given this background, my father wants to ensure that my mother and I are duly insured after him. His will is to transfer the property to mother after him and then to me after my mother. Is such a condition is legal? I mean, she may fight for a share with my mother, since it will become an inheritance for the latter? My parents peace is all I want here.
Asked 10 months ago in Property Law from Australia
1. No need of further Will , a Codicil which is an addendum will do.
2. Registration of Will is not required. if there are 2 witnesses then it is enough.
3.Such condition is very much valid and legal. She can not claim any share in it anymore.
In alternative they can gift the flat to you so avoid future complications.
1. He should make a new will as the beneficiary can claim inheritance to only that property the description of which has been given in the will, failing which the will is likely to run into rough waters.
2. The registration of will is optional but it should always be registered as a registered will carries a presumption of legal validity.
3. Your father can structure his will in a manner that would create a life estate in favour of your mother and thereafter the title can pass to you absolutely after her lifetime. Such a condition can be incorporated in the will.
4. A will can be challenged only on the ground that it was made under coercion, fraud or undue influence. The person who sets up a challenge to a will in a civil court has to prove the element of coercion or fraud through cogent evidence.
5. Get a flawless will drafted by a lawyer.
1) your father can execute a fresh will since flat number and address has changed
2)registration of will is not mandatory
3)your father can in will mention reasons why he is not bequeathing any share in property to your sister
4)your father can bequeath life interest in property to your mother and can mention that on her demise property would devolve on you absolutely
in the alternative your father can during his lifetime execute gift deed in your favour and that of your mother
2) gift deed should be duly stamped and regsitered
It is legal that after your father the property goes to your mother and after her to you. it should be better to mention in the Will that your mother can not sell or transfer or lease or rent out the property after your father without your written consent and It will also better to registered the Will before sub registrar/joint registrar.
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Advocate, New Delhi
1. Yes your father needs to make a make a new WILL if he has not specified about the property after the redevelopment . Once he makes a new WILL all the previous ones if made shall be void.
2. Yes your father will have to register it to avoid further legal trouble and to get it probated without hassles as there is a chance your sister can challenge it.
3. Your parents can make a WILL jointly as to each other and either of the survivor, if your mother too has properties in her name. If it is not the case, your father can make a WILL of life estate to your mother with the condition as you wanted i.e assigning the property to you after your mother's lifetime.The conditions can be put and accordingly clauses can be added in the WILL.
After your father's death your mother will have the right to the property as a LIFE ESTATE and after her it is your absolute right as bequeathed in the WILL.This means your mother cannot transfer it in anybody's name or make changes in the WILL while she is alive.
If your father registers a WILL bequeathing the property to your mother as a life estate and after her death to you, your sister will have no right.
life estate means the WILL is made or bequeathed to your mother for the use and purpose till she dies and after the death of your mother it has to come to you according to the WILL.
Thanks a lot for the answers. Most of you have suggested about drafting a new 'Will' or ‘Codicil’ and getting the same registered to be on the safer side. I will ask them to do the same. The idea of gift deed is not something I like, because I want the property to be in my father’s name and then my mother’s as long as they are alive. This will give them a sense of financial security.
1. There’s a correction to my original query. The transfers between my father and sister happened back and forth via ‘Gift Deeds’ and NOT ‘Sale Deeds’ as mentioned earlier. I have read it and it’s a clean and full title transfer with no conditions like he can’t sell etc. However, will it still affect my father’s right to execute this property in his will?
2. The redevelopment agreement does not mention the new flat number. There’s a slight change in the name of the new building name. The Co-operative Housing Society in its subsequent meetings will finalise the flat numbers. Given that the address is not fully known at this date, can they attach the agreement copy to the new Will? And mention the original address as the old one and the new address as in whatever, the agreement would accord at a later date..? Something on these lines in order to remove any future ambiguity.
Asked 10 months ago
1) merely because gift deed is executed by sister in favour of father and vice versa it would not affect your father right to execute will
2) it is not necessary to enclose agreement copy to will
3) it is sufficient if clear description of flat is mentioned . You can mention old flat number and the new flat to be allotted on redevelopment
Gift deed is a better way of transfer as it is an absolute owner ship instantly on signing the document. Once the gift deed is made in your mother's name she will be the absolute owner , so she has to either transfer it you before she dies or make a WILL in your name to avoid the right of your sister as her legal heir.
The agreement document can be attached to the existing WILL and a codicil in writing about the redeveloped property discription and address also can be added to that.
it can be mentioned in the Will that all the property/properties belongs to your father at present or in Future till he alive can be divided as per his Will. there will be no confusion in future regarding his any property.
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Advocate, New Delhi
will should be registered, a person can make many wills in his life time. in such case only last will is to be executed. so you should cause to draft a new will and get its registration because now registration is compulsory under section 17 of the Indian registration act.
gift becomes irrevocable when donee gets possession over the property or accepts the gift. if she did so then your father cannot make a will in respect of that property.
1. The gift deed also results in conveyance of title just like a sale deed does. So if the gift deed places no fetters on the right of the donee to sell or bequeath the property he is free to do so.
2. Your father may execute a fresh will in which he may assign the property the description which has been given in the agreement, whereas a new will may be executed after the property gets its address. A will can be changed as many number of times by the testator as he desires. Every will is an automatic revocation of the previous will.
1. He can make a codicil or he can revoke or cancel the will and make a fresh will giving corrected details of the property.
2. The Will need be registered however the registering the same shall make it more authenticated.
3. If you apprehend this danger from your sister side, let your father make a registered conditional settlement of this property to our mother with lifetime interest in it and to pass on to you after her lifetime. This will ensure that the property is safely reaching the destination as per his desire.
1. As I told earlier, if this may affect the smooth transfer and you apprehend the danger of any litigation, your father may execute a registered settlement deed in yor mother's favor by giving her the lifetime benefit and you to be an ultimate beneficiary after her lifetime, this will not hamper the proposed peace process.
2. There will be no ambiguity in future in this regard, the present status and address can be mentioned, which can be modified or rectified at a later stage.
Please find below the draft Will. Can you please review and let me know your opinion - if there are any ambiguities, loopholes etc.?
I, MR. <TESTATOR’S NAME> aged ___ years, an adult Indian inhabitant residing at <ADDRESS>, do hereby make my last will as follows:-
I hereby revoke my all Will (s) and Codicil (s) and make this as my LAST WILL.
1. I am married to MS. <WIFE’s NAME>, and out of the said wedlock we have two children, i.e. son – <SON’S NAME>, and daughter – <DAUGHTER’S NAME>.
2. I state that today, I am mentally and physically in a good condition, but there is no certainty of life. My family members are having very good and loving relationship with each other and I wish that it shall continue to be so in future. So in order to avoid any possibility of any kind of unforeseen dispute among them after my demise, I decide and hereby make my Last Will.
3. I state that I am the owner of <FLAT’S ADDRESS>; hereinafter called the said flat.
4. I state that I am a bonafide member of <CO-OPERATIVE HOUSING SOCIETY LTD., ADDRESS>; hereinafter called the said society. The said society is a registered Co-Operative Housing Society under M.C.S. Act, 1960. I further state that I am holding shares and interest in the capital of the said society. I state that at the time of making this Will, the said society has undertaken redevelopment of its property including the said flat. The said society will allot me a new flat as per the scheme of redevelopment of the said society.
5. I state that I hereby bequeath and devise my said flat, now to be allotted by the said society, together with the said shares and interest in the capital of the said society, as Life Estate / Interest to my wife MS. <WIFE’S NAME>. After my demise she would be the absolute owner of the said flat and would have the rights for possession, use and right to receive rents, revenues, profits or any other income that may accrue or arise from the said flat during her lifetime.
6. I further state that upon demise of my wife MS. <WIFE’S NAME>, the ownership of the said flat, together with the said shares and interest in the capital of the said society, should then be automatically transferred to my son MR. <SON’S NAME>, currently residing at <SON’S ADDRESS>. He shall be the absolute owner of the said flat received/to be received under the scheme of redevelopment of the said society.
7. I further state that in the event, if my wife MS. <WIFE’S NAME> happens to demise before me, I hereby bequeath and devise my said flat, together with the said shares and interest in the capital of the said society, to my son MR. <SON’S NAME>. He shall be the absolute owner of the said flat received/to be received under the scheme of redevelopment of the said society.
8. I hereby bequeath and devise all my bank balances, deposits and investments to my son MR. <SON’S NAME>. After my demise, he is solely entitled to claim the same.
9. I further state that I hereby bequeath and devise all properties and assets which I acquire or own in the future after the date that this Will has been made, and therefore not mentioned in this Will, to the sole ownership and control of my son MR. <SON’S NAME>.
10. I, the Testator, make this WILL, on my free will and consent, without any coercion or undue influence, fraud, pressure and /or coercion of any person. I solemnly and sincerely declare and affirm that I have fully read and understood the contents of this Will.
IN WITNESS WHEREOF I, the said MR. <TESTATOR’S NAME>, have put my signature to this MY WILL on this day __________________
We, the attesting witnesses, hereby state and declare that the above Testator has signed in our presence and we have also signed in our presence on this Will on this _____________________ at Mumbai.
Signature of Witness No.1
Signature of Witness No.2
Asked 8 months ago
The problem in the will drafted by your lawyer is that no reasons are mentioned for disinheriting daughter
2) reasons must be mentioned
The draft seems to be perfectly alright in the legal sense, however you can get it scrutinised by an experienced lawyer before getting it registered, if you desire so.