Why Should you write a will

Ajay Kummar Pandey(Advocate Supreme Court of India ) - October 09, 2022 - - 0 |
Why Should you write a will

When it comes to writing a Will, either one delays it indefinitely or ignores it completely. A Will written with the help of Google or a common template of one size fits all, is of practically no use.

If a Will is not written taking into consideration all legal nuances, and particular need of an individual, while incorporating the latest judgements of Hindu Succession Act, 1956, it amounts to having no Will.

As per the available data, in India today , 67 per cent civil cases are related to property disputes, which could have been avoided by having a valid legal Will. Out of this, 76 per cent cases are among blood relatives, own brother and sister, brother and brother etc.

With the recent two decisions of the Supreme Court in the matter of rights of daughters under Hindu Succession Act, 2005, the entire proposition vis-a -vis, sons’ and daughters’ right in the father’s property, both ancestral and self-acquired ,stands totally changed.

A bench of Justices S Abdul Nazeer and Krishna Murari said that if a Hindu man has not made a will and dies, his sons and daughters will have equal rights both in the inherited property and the property acquired by him.

In its latest verdict on this, the Supreme Court said the daughters of a male Hindu, dying without a will, would be entitled to inherit the self-acquired and other properties obtained in the partition by the father and get preference over other collateral members of the family.

The judgment, which came on an appeal against the Madras High Court verdict, dealt with the property rights of Hindu women and widows under the Hindu Succession Act.

What does SC judgement mean?

“If a property of a male Hindu dying intestate (without a will) is a self-acquired property or obtained in the partition of a coparcenary or a family property, the same would devolve by inheritance and not by survivorship, and a daughter of such a male Hindu would be entitled to inherit such property in preference to other collaterals (such as sons/daughters of brothers of deceased father),” noted the bench of justice Krishna Murari.

The bench was dealing with the legal issue concerning the right of the daughter to inherit the self-acquired property of her father, in the absence of any other legal heir.

By inheritance or by survivorship?

The issue before the Court was to decide whether such property will devolve on to the daughter upon the death of her father, who died without a will, by inheritance or shall devolve on to “father’s brother’s son by survivorship”.

In its ruling, the Court noted, “Right of a widow or daughter to inherit the self-acquired property or share received in the partition of a coparcenary (joint heirship) property of a Hindu male dying without a will , is well recognized not only under the old customary Hindu Law but also by various judicial pronouncements.

The apex court said, “Since the property in question was admittedly the self-acquired property of a father despite the family being in a state of jointness upon his death without a will, his sole surviving daughter will inherit the same by inheritance and the property shall not devolve by survivorship. Under the old provision of law, the right used to be transferred to the son of a brother rather than the surviving daughter of a man, dying intestate.

In the light of the above judgement, now it is very clear that in case a father wants that his property should not go to his daughter, he must write a will or arrange to transfer it through gift or sale deed, during his lifetime.

The second development, which needs to be taken into account is that, as per Hindu Succession Act, 1956, daughters had no right in the property of father and it was only sons who used to enjoy rights in father’s property.

But, with a new amendment in Hindu Succession Act,1956, now known as Hindu Succession Act, 2005, the court granted equal rights to daughters in father’s property. However, it came with a condition of cut-off date, of 2005.

Setting aside the condition of cut-off date, the Supreme Court held that daughters will have coparcenary rights on father’s property even if he died before the Hindu Succession (amendment) Act 2005 came into force.

In 2016, the Supreme Court decided that such right will not be retrospective in Prakash v Phulwati case while in 2018 another bench of the court in Danamma v Amar held it to be retrospective.

Answering the reference, the bench of Justice, Arun Mishra, said, “Daughters cannot be deprived of their right to equality conferred by Section 6 of the Act.” The bench said that daughters will have the right over parental property even if the coparecenor had died prior to the coming into force of the Hindu Succession (Amendment) Act, 2005.

There are cases and instances where, in the absence of Will, the share of the property can go to the brother after the death of the original owner of the property via the mother’s share. If a person is not married and he dies, his share in ancestral property also devolves to other surviving members in the family. To acquire brothers’ rights in property in many parts of India, the unmarried men are killed by their own family members.

Thus, there is no point in dabbling in the complex and complicated domain of Hindu Succession Act. The best way out is writing the Will, on time by taking all precaution, which will ensure smooth transfer of property as per wish and desire of the owner.

Will, is a document, which comes into force, after the death of a person, but there is even a stage in life, when one is neither alive nor dead. A Will must have provision for this phase of life too.

The Will comes with a safe rider of changing and altering it end number of times, so there is nothing to worry about frequent changes in stock of real estate or assets or even change of mind, as long as one is ready to write a Will.

Leave a Reply

    Join our mailing list to keep up to date with breaking news