19 February 2021
The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions shared in an article in the following Q&A which was published by the Mint Newspaper on 18th February, 2021 and the online edition of the same can be found here.
My 70-year-old maternal aunt is unmarried and has a house in which she, my mother, younger brother and I have been staying together since 2002. The aunt is my maternal grandfather’s sister’s daughter. My mother has an elder brother too. My aunt inherited the house from her mother. What will be the status of the house when she passes away? Will my mother still have the right to stay in it? My mother and aunt have an “either survivor bank account” and locker, in which they keep their money and valuables. What will happen to that account in case of my aunt’s death?
—Name withheld on request
We assume that all of you are Hindu by faith. Testamentary succession for Hindus is governed by the provisions of the Indian Succession Act, 1925, and intestate succession is governed by the provisions of Hindu Succession Act, 1956.
Note that land inherited from a biological (or adopted) mother (in the present case, your aunt inherited the house from her mother) is not considered ancestral property. Therefore, for the purposes of this response, the property is classified as ‘self-acquired’ and that title to the house rests solely in her name.
In the event your maternal aunt passes away without executing a will, given that she is unmarried, the property may devolve between heirs of her father, if any.
In the absence of any heirs of her father, it will devolve equally between your mother and her elder brother only (as per Section 15 of the Hindu Succession Act).
Therefore, if the heirs of your maternal aunt’s father are alive, they would be legitimate heirs of the property after the death of your maternal aunt (in case she does not execute a valid will).
In this case, your mother cannot claim a right to the house. However, if your maternal aunt’s father’s heirs are not alive, your mother would be entitled to the house along with her elder brother. In other words, your mother will not be the sole legatee of the house.
Accordingly, we strongly recommend that your aunt execute a will in respect of the property. A valid will may be executed by your maternal aunt in the presence of two independent witnesses.
A medical certificate can be obtained from your maternal aunt’s doctor proving her sound mental capacity. This would be helpful in the future, if the validity of the will were to be contested.
Additionally, a will does not require registration for it to be valid. If your maternal aunt is desirous of solely bequeathing the house in favour of your mother, she would be only able to do so by way of a will.
Further, in relation to an “either surviving bank account” and locker jointly held by your mother and aunt, both will stand transferred in favour of your mother. A provision for the same can be made in the will as well.
For further information, please contact:
Rishabh Shroff, Partner, Cyril Amarchand Mangaldas
rishabh.shroff@cyrilshroff.com
