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 24th June, 2020 and the online edition of the same can be found here.
I have executed a gift deed in favour of my son and my wife. In the gift deed, the first name is of my son and the second name is my wife’s. The gift deed is unconditional. Moreover, the property in question is only a vacant plot of land.
I want to know whether after the death of my wife if our daughter can claim her share in the property.
—Name withheld on request
We understand that you have transferred the property (the vacant plot of land) by a gift deed to both your son and your wife, and that your son is the first title holder and your wife is the second title holder in the property.
Accordingly, it is important to understand the nature of the ownership of the property, since this would also determine the succession of title.
If your son and your wife hold the property as joint tenants, then on the demise of either of them, their share in the property would automatically devolve upon the other. Whereas, if your son and your wife hold the property as tenants-in-common, on the demise of either of them, the share of the deceased tenant-in-common in the property, would devolve upon the legal heirs of such deceased tenant-in-common, in accordance with the rules relating to intestate succession.
We assume that you and your family are Hindus. Accordingly, if the property is being held by your son and your wife as tenants-in-common, upon the death of either of them, their share would pass on to Class I heirs of such person. However, if the property is being held by them as tenants-in-common, they may each execute a Will in favour of any person during their lifetime and exclude their legal heirs.
Accordingly, if your wife executes a Will stating that her share in the property would be bequeathed exclusively to your son, then upon her demise, the entire property would become part of your son’s estate.
The legal heirs of your wife (including your daughter) will have no claim over such property. We recommend this Will be prepared at the earliest, if not already done.