Jayshree Navin Chandra, Senior Partner, Zeus Law

Q: My father was a Hindu and passed away recently without leaving a Will. His immediate family comprises of my mother, myself and my sister. He was owner of a residential property in Delhi. How will his property be divided?

Answer: Since your father died without a Will (known as dying intestate), the distribution of his property will be as per the provisions of the Hindu Succession Act, 1956. If your grandmother predeceased your father, then you, your sister and your mother are entitled to an equal one-third share  each in your father’s property. 

Q: Is it compulsory to register a Will? Is an unregistered Will legally valid?

Answer: No. Registration of a Will is not mandatory in India. An unregistered Will can be perfectly valid if it has been executed voluntarily by a person of sound mind and is attested by at least two witnesses, as required under the Indian Succession Act, 1925. However, registration often adds credibility and reduces the possibility of future disputes regarding its authenticity.

Q My siblings are refusing to partition our inherited property. What can I do?

Answer: You may file a suit for partition before the competent civil court. The court can determine the respective shares of the parties and, where necessary, order division by metes and bounds or sale of the property with distribution of sale proceeds. Mediation should always be explored before initiating litigation, as family settlements are often faster and less expensive.

Q : My elderly parents want to transfer property to me during their lifetime. Should they execute a Gift Deed or a Will?

Answer: A Gift Deed transfers ownership immediately and is generally irrevocable once validly executed and registered. A Will takes effect only after the death of the testator and can be altered or revoked at any time during the testator’s lifetime. The appropriate option depends upon the family’s objectives, tax implications, stamp duty considerations and the need to retain control over the property during one’s lifetime. 

Q: My parents want to leave more property to my sister because she has special needs. Can they legally do so?

Answer: Yes. Every individual has the freedom to dispose of his or her self-acquired property through a Will in the manner they consider appropriate. Parents may leave unequal shares to children, provided the Will is executed voluntarily, by a person of sound mind, and in accordance with legal requirements. It is advisable to clearly record the reasons for unequal distribution to minimise the possibility of future disputes.