Recently my grandfather who is healthy gifted me his property. Can he now also make a will deed on my name including the land he gifted me in the will deed.
2 years ago
Recently my grandfather who is healthy gifted me his property. Can he now also make a will deed on my name including the land he gifted me in the will deed. Or does the will deed become null because he already gifted it to me
A.Dear Sir/ Madam,
If your grandfather has complied with all the requirements for registering a gift deed then the property already belongs to you.
thank you
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If your grandfather has complied with all the requirements for registering a gift deed then the property already belongs to you.
thank you
If you find this response useful please rate me.
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A.Dear Sir,
They cannot be two parallel Wills in respect of same property.
================================================
l. SUCCESSION
1.1 The manner of distribution of a person’s property after his death is determined by the fact whether the deceased has made a Will or not. All civilised societies have recognised the right of an individual to acquire, hold and dispose of property. This right of disposal includes the right to dispose properties in a manner so as to take effect after the death of a person. Such a right can be exercised by making an instrument known as Will, during the lifetime of a person. Person making a Will in such a case is known as 'testator’ and distribution taking place after death of the testator as per his Will is known as 'Testamentary' succession.
1.2 In case of a person who dies without making a Will, the property passes by inheritance as per the personal law of the deceased. Devolution of property of such a person after his death is known as 'Intestate’ succession. In India, laws governing such intestate succession are the Indian Succession Act, 1925, (I.S. Act) Hindu Succession Act, 1956 and Mohammedan Law. These laws by and large provide for the manner of devolution of the properties of the deceased who has died without making a Will, amongst his legal heirs. They provide amongst other things, rules as to who are the persons entitled to receive the estate of the deceased and in what proportion. They also lay down the manner in which the estate of the deceased is to be administered.
1.3 Relevance of domicile/location of a property
For purposes of determining applicability of laws in case of a succession, it is necessary to determine the domicile of the deceased. In case of an immovable property located in India, the laws of succession prevailing in India would determine the successors of such property. In case of movable properties, the laws governing the country of domicile of the deceased would determine the successors of the property. Domicile is relevant for movable properties while location is relevant for immovable property.
1.4 Intestate succession as per personal laws
1.4.1 Hindus/Jains/Buddhists/Sikhs
Hindu Succession Act, 1956, applies to persons following the above faiths. A distinction is made between a male and a female for the purposes of deciding the manner of distribution of their estates. Heirs are defined as class I, class II, Agnates and Cognates for a male Hindu while for female they are provided in S. 15 and S. 16 of the Act.
S. 21 of the Special Marriage Act, 1954 provides that any person whose marriage is solemnised under the Special Marriage Act, 1954, succession of property of such person shall be regulated by the provisions of the IS Act. However, the Marriage Laws (Amendment) Act, 1976, inserted S. 21A in the Special Marriage Act which provides that where the marriage is solemnised under the Special Marriage Act of any person who professes the Hindu, Buddhist, Sikh or Jain religion, with a person who professes the Hindu, Buddhist, Sikh or Jain religion, S. 21 of the Special Marriage Act shall not apply. In conclusion, even in case of the marriage of a Hindu, Buddhist, Sikh or Jain solemnised with another Hindu, Buddhist, Sikh or Jain under the Special Marriage Act, such person's succession will be governed by the Hindu Succession Act, and not by the IS Act.
Male : His property devolves upon his widow, children (including heirs of a predeceased child through such child) and mother in equal shares – each taking one share. In case where none of them are present, the property will pass to his father if he is alive and failing which to his brother, sister and other relatives specified in class II.
Female : Her property devolves upon her husband and children (including children of a predeceased child through such child) in equal shares — each taking one share. In case where none of them are present, property will pass to heirs of her husband and failing them to her mother and father, so however, a distinction is made in such a case between the properties received from the parents of the female and those which are received from the husband and the father-in-law. The latter property will pass to heirs of her husband while the former will pass upon the heirs of her father.
1.4.2 Mohammedans – Property of a Mohammedan devolves on his or her successors as per his or her personal law. However, estate of persons married under the Special Marriages Act, 1954, shall devolve as per the provisions of the Indian Succession Act.
1.4.3 Others – Properties of persons following any faith other than the Hindus, Jains, Sikhs, Buddhists and Mohammedans and Parsis shall devolve as per the provisions of the Indian Succession Act.
li. WILL
2.1 What is it ?
2.1.1 S. 2(h) of the IS Act defines a 'Will’ as a legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. Accordingly, a Will made during the lifetime of a person becomes effective only on his death. It is for this reason that a Will can be revoked any time during the life of the person making a Will — a testator.
2.1.2 The procedure governing the Wills in India is laid down by the IS Act, 1925. The Act provides the procedure for making, execution and administration of a Will. It applies to all the persons of any faith (except Mohammedans). The following sections of the Indian Succession Act are not applicable to Wills executed by Hindus/Jains/Buddhists and Sikhs.
S. 60 Testamentary guardian
Ss. 65 & 66 Execution of privileged Wills
S. 67 Effect of gift to attesting witness
S. 69 Revocation of Will by testator’s marriage
S. 72 Revocation of privileged Will or codicil
S. 91 Power of appointment executed by general bequest
S. 92 Implied gift to objects of power in default of appointment
S. 93 Bequests to heirs, etc. of particular person without qualifying terms
S. 94 Bequest to representatives, etc. of particular person
S. 97 Effect of words describing a class added to bequest to person
S. 99 Construction of terms
S. 100 Words expressing relationship denote only legitimate relatives or failing such relatives reputed legitimate
S. 118 Bequest to religious or charitable uses
2.1.3 Section 57 of the IS Act, 1925 provides that sections listed in Schedule III to the IS Act shall apply –
a. to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain within the territories which at the said date were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
b. to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and
c. to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which these provisions are not applied by clauses (a) and (b);
Provided that marriage shall not revoke any such Will or codicil.
2.2 Certain terms
d. 'Testator’ : a person making a Will.
e. Legatee or beneficiary : a person to whom property is given under the Will.
f. Legacy : a benefit under the Will.
g. Executor : a person appointed by the testator to execute the Will as per the provisions of the Will.
h. Attestation : an act of witnessing the execution of the Will.
i. Administrator : a person appointed by a competent authority to administer the estate when no executor is appointed or an executor appointed refuses to act as an executor.
j. Probate : a copy of a Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate.
k. Codicil : a document which modifies or alters the provisions of the original Will and forms part of it.
l. Letter of Administration : a letter of the court appointing an administrator to the estate.
m. Succession Certificate : as issued by a Civil Court of competent jurisdiction in respect of the property of a person who has died intestate, that is without making a Will and where letter of administration or probate is not compulsory.
2.3 Who can make it — S. 59 of IS Act provides that every person of sound mind not being a minor may dispose of his property by a Will. Persons who are deaf, dumb, blind and even an insane person during his sanity can make a Will. However, any person in an improper state of mind due to intoxication, illness, etc. cannot make a Will where he does not know what he is doing. Subsequent incapacity will not invalidate a Will.
2.4 Form — Except in cases of Mohammedans, a Will has to be in writing and oral dispositions are not recognised. However, a soldier on a war front can make an oral Will known as a Privileged Will. No specific form is prescribed under Indian Succession Act nor any specific language insisted upon. It can be handwritten or typed. It can be made on a plain paper.
2.5 Execution — A Will should be executed by the testator by signing or putting his mark on Will in a manner so as to clarify his intent. The act of execution by the testator should be witnessed by at least two persons acting as attesting witnesses, who must sign or put their marks in the presence of the testator. It is preferable that the signature is placed at the end of the Will. Subject to the Will being made by a competent person in writing, executed by testator and attested by at least two witnesses no other legal requisites are provided for in the Indian Succession Act.
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They cannot be two parallel Wills in respect of same property.
================================================
l. SUCCESSION
1.1 The manner of distribution of a person’s property after his death is determined by the fact whether the deceased has made a Will or not. All civilised societies have recognised the right of an individual to acquire, hold and dispose of property. This right of disposal includes the right to dispose properties in a manner so as to take effect after the death of a person. Such a right can be exercised by making an instrument known as Will, during the lifetime of a person. Person making a Will in such a case is known as 'testator’ and distribution taking place after death of the testator as per his Will is known as 'Testamentary' succession.
1.2 In case of a person who dies without making a Will, the property passes by inheritance as per the personal law of the deceased. Devolution of property of such a person after his death is known as 'Intestate’ succession. In India, laws governing such intestate succession are the Indian Succession Act, 1925, (I.S. Act) Hindu Succession Act, 1956 and Mohammedan Law. These laws by and large provide for the manner of devolution of the properties of the deceased who has died without making a Will, amongst his legal heirs. They provide amongst other things, rules as to who are the persons entitled to receive the estate of the deceased and in what proportion. They also lay down the manner in which the estate of the deceased is to be administered.
1.3 Relevance of domicile/location of a property
For purposes of determining applicability of laws in case of a succession, it is necessary to determine the domicile of the deceased. In case of an immovable property located in India, the laws of succession prevailing in India would determine the successors of such property. In case of movable properties, the laws governing the country of domicile of the deceased would determine the successors of the property. Domicile is relevant for movable properties while location is relevant for immovable property.
1.4 Intestate succession as per personal laws
1.4.1 Hindus/Jains/Buddhists/Sikhs
Hindu Succession Act, 1956, applies to persons following the above faiths. A distinction is made between a male and a female for the purposes of deciding the manner of distribution of their estates. Heirs are defined as class I, class II, Agnates and Cognates for a male Hindu while for female they are provided in S. 15 and S. 16 of the Act.
S. 21 of the Special Marriage Act, 1954 provides that any person whose marriage is solemnised under the Special Marriage Act, 1954, succession of property of such person shall be regulated by the provisions of the IS Act. However, the Marriage Laws (Amendment) Act, 1976, inserted S. 21A in the Special Marriage Act which provides that where the marriage is solemnised under the Special Marriage Act of any person who professes the Hindu, Buddhist, Sikh or Jain religion, with a person who professes the Hindu, Buddhist, Sikh or Jain religion, S. 21 of the Special Marriage Act shall not apply. In conclusion, even in case of the marriage of a Hindu, Buddhist, Sikh or Jain solemnised with another Hindu, Buddhist, Sikh or Jain under the Special Marriage Act, such person's succession will be governed by the Hindu Succession Act, and not by the IS Act.
Male : His property devolves upon his widow, children (including heirs of a predeceased child through such child) and mother in equal shares – each taking one share. In case where none of them are present, the property will pass to his father if he is alive and failing which to his brother, sister and other relatives specified in class II.
Female : Her property devolves upon her husband and children (including children of a predeceased child through such child) in equal shares — each taking one share. In case where none of them are present, property will pass to heirs of her husband and failing them to her mother and father, so however, a distinction is made in such a case between the properties received from the parents of the female and those which are received from the husband and the father-in-law. The latter property will pass to heirs of her husband while the former will pass upon the heirs of her father.
1.4.2 Mohammedans – Property of a Mohammedan devolves on his or her successors as per his or her personal law. However, estate of persons married under the Special Marriages Act, 1954, shall devolve as per the provisions of the Indian Succession Act.
1.4.3 Others – Properties of persons following any faith other than the Hindus, Jains, Sikhs, Buddhists and Mohammedans and Parsis shall devolve as per the provisions of the Indian Succession Act.
li. WILL
2.1 What is it ?
2.1.1 S. 2(h) of the IS Act defines a 'Will’ as a legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. Accordingly, a Will made during the lifetime of a person becomes effective only on his death. It is for this reason that a Will can be revoked any time during the life of the person making a Will — a testator.
2.1.2 The procedure governing the Wills in India is laid down by the IS Act, 1925. The Act provides the procedure for making, execution and administration of a Will. It applies to all the persons of any faith (except Mohammedans). The following sections of the Indian Succession Act are not applicable to Wills executed by Hindus/Jains/Buddhists and Sikhs.
S. 60 Testamentary guardian
Ss. 65 & 66 Execution of privileged Wills
S. 67 Effect of gift to attesting witness
S. 69 Revocation of Will by testator’s marriage
S. 72 Revocation of privileged Will or codicil
S. 91 Power of appointment executed by general bequest
S. 92 Implied gift to objects of power in default of appointment
S. 93 Bequests to heirs, etc. of particular person without qualifying terms
S. 94 Bequest to representatives, etc. of particular person
S. 97 Effect of words describing a class added to bequest to person
S. 99 Construction of terms
S. 100 Words expressing relationship denote only legitimate relatives or failing such relatives reputed legitimate
S. 118 Bequest to religious or charitable uses
2.1.3 Section 57 of the IS Act, 1925 provides that sections listed in Schedule III to the IS Act shall apply –
a. to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain within the territories which at the said date were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
b. to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and
c. to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which these provisions are not applied by clauses (a) and (b);
Provided that marriage shall not revoke any such Will or codicil.
2.2 Certain terms
d. 'Testator’ : a person making a Will.
e. Legatee or beneficiary : a person to whom property is given under the Will.
f. Legacy : a benefit under the Will.
g. Executor : a person appointed by the testator to execute the Will as per the provisions of the Will.
h. Attestation : an act of witnessing the execution of the Will.
i. Administrator : a person appointed by a competent authority to administer the estate when no executor is appointed or an executor appointed refuses to act as an executor.
j. Probate : a copy of a Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate.
k. Codicil : a document which modifies or alters the provisions of the original Will and forms part of it.
l. Letter of Administration : a letter of the court appointing an administrator to the estate.
m. Succession Certificate : as issued by a Civil Court of competent jurisdiction in respect of the property of a person who has died intestate, that is without making a Will and where letter of administration or probate is not compulsory.
2.3 Who can make it — S. 59 of IS Act provides that every person of sound mind not being a minor may dispose of his property by a Will. Persons who are deaf, dumb, blind and even an insane person during his sanity can make a Will. However, any person in an improper state of mind due to intoxication, illness, etc. cannot make a Will where he does not know what he is doing. Subsequent incapacity will not invalidate a Will.
2.4 Form — Except in cases of Mohammedans, a Will has to be in writing and oral dispositions are not recognised. However, a soldier on a war front can make an oral Will known as a Privileged Will. No specific form is prescribed under Indian Succession Act nor any specific language insisted upon. It can be handwritten or typed. It can be made on a plain paper.
2.5 Execution — A Will should be executed by the testator by signing or putting his mark on Will in a manner so as to clarify his intent. The act of execution by the testator should be witnessed by at least two persons acting as attesting witnesses, who must sign or put their marks in the presence of the testator. It is preferable that the signature is placed at the end of the Will. Subject to the Will being made by a competent person in writing, executed by testator and attested by at least two witnesses no other legal requisites are provided for in the Indian Succession Act.
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Ayantika Mondal @ Prime Legal
Responded 2 years ago
A.Dear Sir/ Madam,
If your grandfather has complied with all the requirements for registering a gift deed then he need not or more particularly cannot make a will deed because the property already belongs to you in pursuant of the gift deed.
If you find this response useful please rate me.
If your grandfather has complied with all the requirements for registering a gift deed then he need not or more particularly cannot make a will deed because the property already belongs to you in pursuant of the gift deed.
If you find this response useful please rate me.
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Vaidehi Samant
Responded 2 years ago
A.Don't go for a Will rather go for registered gift deed as Will can be easily challenged before the Court of law whereas Gift deed is a safe document comparatively if registered following due legal process and hard to prove wrong or faulty even if it is challenged and if already gift deed has been made and registered than there's no need to make Will for the same property again. Thank you.
If you have found the answer helpful than please provide review and give***** as appreciation.
If you have found the answer helpful than please provide review and give***** as appreciation.
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Sidhaarth
Responded 2 years ago
A.If gift is made after following legal procedure and rituals then gift is valid and you became absolute owner of property. So legally your grandfather does not have any right to make a WILL of your property as after making gift your grandfather cease to have any right over the property.
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Advocate Sinjari Bandyopadhyaya
Responded 2 years ago
A.If that Gift Deed had been executed by your grandfather in registered manner with the relevant terms for complete property transfer,then the property being already transferred to you, your grandfather has no legal right to make any Will in that regard.
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