The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions in an article in the following Q&A which was published by the Mint Newspaper on 21st July, 2021 and the online edition of the same can be found here.
My husband died in 2020 and left a house and a flat (currently on rent) in my name. Besides, there are some assets such as jewellery and fixed deposits that I intend to equally distribute among my two children. Should I get a Will registered for the purpose, since my son is not happy that I want to give an equal share to my daughter as well? How do I ensure that the property does not go into dispute after my demise?
—Name withheld on request
We have assumed that your husband and you are Hindu by faith. To mitigate challenges to the enforcement of a Will, you may consider the following steps: Ensure that you execute the Will in the presence of two independent witnesses; obtain a medical certificate (preferably issued on the execution date) from your consulting doctor attesting to the fact that you are of sound mind and memory to execute your testamentary documentation; consider video recording the execution process with you clearly acknowledging your intention to divide your estate equally between your children. You can consider storing this video recording on a pen drive and place it in the same envelope as your executed Will (prior to sealing it).
You should register the Will with the sub-registrar. While registration does not automatically prove the validity of the Will, it will help evidence the formal execution of the Will. It is difficult in law to outright stop a challenge to a Will occurring, but you can take steps to reduce the chances and/or ensure you win the battle on merits. It may be prudent to discuss your potential bequests with your son beforehand and see if a resolution can be reached—this can potentially be documented as a family arrangement among all of you.
If such a family arrangement is executed in writing, it would have to be registered with the sub-registrar, and will help avoid any future discontent between your son and daughter, and the courts are more inclined to give effect to family arrangements to promote speedy justice as well.
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