1 October 2021
The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions in an article in the following Q&A which was published by the Mint Newspaper on 29th September, 2021 and the online edition of the same can be found here.
Do married daughters have rights over their father’s self-acquired property if the father passed away in 1999, which is before the Hindu Succession (Amendment) Act, 2005? Also, the daughters in this case were married before 1986, after they received proper settlements with land plots and were told that they would have no share in the remaining property of the father, earmarked for the sons. The father also wrote a Will stating that all his acquired property will go to his wife and sons alone. But due to his illness, he could not get it signed by two witnesses. Also due to change of residence and his death, only a photocopy of this Will was found. Can this Will be used in any way?
—Name withheld on request
We understand that the father passed away in 1999, having executed a Will that was not attested by any witnesses , and that only a copy of it is in your possession. Also, a purported ‘settlement’ of the immovable properties occurred prior to 1986. However, there does not appear to be a family arrangement on the basis of mutual consensus among the parties. This ‘settlement’ requires further assessment as it could impact the claims daughters could have in respect of the father’s estate in the event of intestacy.
In respect of self-acquired property, a person has absolute rights to alienate, mortgage, gift, bequeath by way of a Will or transfer self-acquired property. Accordingly, in the event of intestacy of the deceased father, irrespective of their marital status, his daughters are entitled to claim a share in such self-acquired property, in the capacity of being his Class I legal heirs.
With regard to the status of the Will, your query does not specify where the land plots are located or where the Will was executed. This is important to determine the requirement for a probate of the Will.
Also, the main concern here is the absence of attesting witnesses. Section 63(c) of the Indian Succession Act, 1925, specifically prescribes that a Will must be attested by two witnesses. In light of these circumstances, we would advise that you engage an attorney at the earliest. From the facts shared by you, it appears that the court will hold your father’s Will invalid, and that his estate will pass under intestacy. If so, all his property will go equally to his Class I heirs, which include your sisters.
For further information, please contact:
Rishabh Shroff, Partner, Cyril Amarchand Mangaldas
rishabh.shroff@cyrilshroff.com
