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 5th August, 2020 and the online edition of the same can be found here.
My father passed away intestate. We are three siblings. My mother and I live in the house owned by my father, and I want this property to be transferred in my mother’s name. My brother and my sister live separately. Is there a way in which the house can be transferred to my mother without any involvement of my brother?
Since the house has been constructed by your father, it will be treated as a self-acquired property. As your father passed away intestate, the property will devolve equally upon the legal heirs of your father—your mother, elder brother, sister and yourself (Class I heirs).
As a vested right is created in favour of all such Class I heirs upon the demise of your father, your brother also receives a right in the property. However, in order to exercise any rights in relation to the property, local procedures as regards intestate succession may have to be complied with as a pre-condition.
Once the relevant process for intestate succession has been completed, your mother may choose to buy the shares of the other family members or enter into a family settlement agreement, mutually agreeing that your mother is the sole owner. However, without the express consent of all parties, there would not be any other way to transfer sole interest in favour of your mother.
I have prepared a will for my assets (equity shares and one flat). I have secured signatures of my sisters as witnesses, including my mother. I have not registered or notarized the will. Is it mandatory to register or notarize the will to be effective?
We assume that you are a Hindu by faith and, hence, certain rules will apply accordingly. Testamentary succession for Hindus is governed under the Indian Succession Act, 1925. A will is very simple to make—all you need to do is put your signature onto a typed (preferred option) or handwritten will, which would then need to be signed by two witnesses.
It is not mandatory to register a will in India. Hence, we understand that these formalities have been followed, and your will would be recognized as valid. As a practical matter, to help ensure that your will and the estate is more secure, you may consider re-signing your will with a younger, independent witness instead of your mother—as the chances are she may predecease you. Your personal doctor is a good choice. Assuming you own the flat in a society, please ensure that the relevant nomination processes have been followed as well.