Q1. Can a matter relating to
obtaining probate of a Will executed by person be referred to Arbitrator?
A. No, Probate proceedings
cannot be referred to Arbitration. The probate court (whether it is the
District Court or High Court) has been granted and conferred with exclusive
jurisdiction to grant probate of a Will of the deceased. The Probate granted by
a court is a judgement in “rem” and is conclusion and binding not only on the
parties but also on the entire world. As such the parties cannot by mutual
consent refer a probate regarding Will to Arbitration.
Q2. What does actually WILL mean’s?
How do you make it also tell me the way of registering?
A. WILL is a legal
declaration of the intention of a person with respect to his property or a
state, which he desires to take effect after his death. WILL is an untitled
document which state after the death of a person making the deposition and it
is document which can be revoked, modify or substituted by the person executing
the will at any point of his time during his life time. For executing the Will
the person must be fully competent, as much as he should not be a minor and
should not person of unsound mind. The Will has to be in writing and has to
state that the person executing the same is making it out of his own free will
and in a sound disposing state of mind. It has to be signed by the executor of
the Will and has to be attested by two witnesses at least. However under the
provisions of law the Will is not requiring in writing no required to be signed
or attesting. The WILL under law is not required to be compulsory registered.
It can be executed even on a plain paper and it can be fully valued even if
unregistered. In the event of the person desiring WILL to be registered, he has
to approach the office of the Sub-registrar and has to be accompanied by the
person who have signed as witnesses on the said WILL .The executor of WILL as
well as the attesting witnesses have to put their signatures and thumb
impressions in the register maintained by the Sub-registrar. There are
Sub-registrars defined for various district and you have to inquire for in this
regard from the concerned office as to which Sub-registrar you are required to
get your WILL registered. The Sub-registrar would be as per the place of the
residence of the person executing the WILL.
Q3. One of my friends father died without
leaving any Will. He has two married sisters and no brother. One of his
sister is insisting that she should be given ½ of the share as other sister is
not interested in claiming any share. What is the law in this context?
A. When a Hindu male dies intestate
his property devolves around his legal heirs. Section 10 of the Hindu
Succession Act,1956 gives in detail the list of Class I heirs who are go be
given first preference while dividing the property of the deceased. Rule 1 of
this Section provides for a share of property for the widow of the deceased.
Rule 2 of this Section provides for a share each for the surviving sons and
daughters and the mother of the deceased. In your case though it is not clear
whether the deceased has a surviving widow and mother but in case there are
only two surviving daughters and a son each one will get a share each i.e. 1/3
of the undivided share in the property. In case one of the sisters of your
friend is willing to relinquish her share in favor of the other sister, she
can do so by executing a relinquishment deed in her favor However, in case
your friend’s father has left a residential house, which is occupied by your
friend and other members of the family, then under Section 23 of the Hindu
Succession Act, 1956, his sisters cannot claim partition of the said House till
the son (i.e. your friend) chooses to divide the respective shares in the said
house.
Q4. Is it true that a person in India
cannot name his daughter as a successor in his will and give her all his
property? If yes, what happens if a person has only daughter and no son?
A. It is wrong that a person in India
cannot give his/her property to his/her daughter in his WILL. Person can give
anything to his daughter in a WILL. Even if there is no WILL and a person dies
and his only successor is a daughter, the daughter automatically becomes the
owner of all the properties/assets of the deceased.
Q5. Payment of deceased depositor’s
money without nomination valuing Rs.100000 to the legal heirs on the strength
of affidavit and indemnity bonds is the payment payable to legal heirs without
production of succession certificate from a foreign bank situated in New Delhi.
Kindly guide rules in this regard?
A. The bank can make the payment to
the legal heirs on the strength of Indemnity Bond and affidavit. There is no
compulsion for obtaining the succession certificate from the court, unless
there is dispute among the legal heirs. But Bank sometimes insists for
obtaining succession certificate, in order to fully safeguard them. As per
information available with us, there are no RBI guidelines in this regards, but
you would be still advised to check the same.
Q6. I have an Indian-born client who
is a USA citizen. The couple has assets in India and I have several questions
regarding the disposition of these assets. They have a trust set up in the US
and I want to know whether the plan of disposition outlined in their trusts
would be applicable to property In India. What would be the process in India
for the transfer of ownership of the assets at the death of a relative to my
clients? What process in India for the transfer of ownership of my clients
assets at their deaths? Is there any restriction on the removal of intangible
assets from India if received as an inheritance?
A. The assets in India can be
disposed off as per the trust provided the same are in conformity with Indian
Laws. The assets of the relative can be transferred as per the WILL , if any,
left by the relative or in what capacity the person is related to the relative
to inherit the assets. At the death of your client the assets can be
transferred to the legal heirs or as per WILL or as per Trust depending upon
the circumstances. The intangible rights can be transferred in India in
accordance with the Transfer of Property Act and that too by a
registered document.
Q7. I am resident of Delhi, only son
of my mother. My father expired long back. I have 3 sisters all are married, I
am also married living with my mother in a flat registered in her name. I wish
to get the flats registry changed in my name with my mother content. Please advice
in details what options do we have for this. I am working and am 29 years old.
My wife is a housewife and this flat was bought by her by own resources as well
as mine. Please advise if she can gift the house to me, what tax, if any will be
payable. I hold NRI status. Does just will from her will be sufficient for
this.
A. Your mother can execute a WILL in
your favor However, if your sister will object or you apprehend and
objections from their side then please go for a Gift Deed. The gift is required
to be registered under the Indian Registration Act. You have to pay stamp duty
of 8% on the value of gift, i.e. the property in question. In case your sisters
will not object then go for WILL. But at the same time take affidavit from your
sisters that they know about execution of WILL in your favor and shall have no
objection to the WILL, as a precaution.
Q8. A family relation has died
without leaving a Will. He was not married. He has I surviving brother and 2
surviving sisters. All his other brothers and sisters have died. The family is
Hindu, under the law who all qualifies to inherit from the estate. Only the
surviving brother and sisters or do the children of the other brothers and
sisters who have died also qualify?
A. Your case fails under Class II
heirs of Hindu Succession Act. The property of a male Hindu dying intestate
shall devolve firstly, upon the heirs, being the relatives specified in class 1
of the Schedule and secondly, if there is no heir of Class I, then upon the
heirs, being the relatives specified in class II of the Schedule. Among
the heirs specified in the Schedule, those in class I shall take simultaneously
and to the exclusion of all other heirs, those in the first entry in class II
shall be preferred to those in the second entry, those in the second entry shall
be preferred to those in the third entry, and so on in succession.
Q9. A family relative has
died. He was a Hindu and being a bachelor he did not have immediate family. He
has 3 living brothers and sisters and 3 of this brothers and sisters are
deceased. The deceased brothers and sisters have spouses and children. He has
made a will giving 1/3 share of his estate to one brother who is alive, and 1/3
share each to a nephew and niece of one his surviving sisters. For probate
purposes can any of the other living brothers/sisters contest the will. Also
can the spouse or children of the deceased brothers/sisters contest the will?
What if any, can be legitimate grounds for contesting the will? For probate
will the non- -inheritors be required to give any no objection document?
A. On filling the probate
proceedings all the legal heirs will get the notices from the court
for filling objections if any. If the heir does not appear before the court it
will be presumed that such person has no objection to the grant of probate.
Children and spouses of the deceased brothers and sister can also file
objections to the grant of probate. Will can only be challenged if it is not
properly executed or it was not properly attested by the witnesses or the
person in fact had not executed at all or the person executed the Will was
influenced by the beneficiaries or the beneficiaries had taken interest in the
execution of the WILL. Giving of no objection is not necessary but the
presumption will be drawn as stated above. But if no objection is given in
court, it would be better.
Q10. If I make my will only in my
sons name then my daughters entitled to any thing. Also if a person dies
without making a will then daughters entitled to legally for the right in the
property?
A. You can make WILL in favor of your son by excluding the daughters. If no WILL is made, on death all
the legal heirs which include daughters have equal share in the property along
with sons.
Q11. My mother owns a flat in her
name. Can she sell the flat to me or it has to be gifted or willed only? I am
29 years old, male and have 3 sisters, all married.
A. If your sister will not create problem WILL is the
cheapest mode. To further ensure, you take affidavit from your sisters that
they know the execution of WILL in your favor and they have
no objections. Otherwise gift or Sale Deed is the safer mode.
Out of two Gifts is preferable. It has to be executed on appropriate stamp
paper (depending upon the value of the property) and registered with the
Sub-Registrar.
Source: vakilno1