Handwritten Will

This query is : Resolved 

Querist : Anonymous (Querist)
05 December 2018

Is handwritten will valid in India?? It has sign of two witnesses, date, sign of my father, his statement of his sound mental health. It is written in handwriting of my father. But local lawyer refusing it's not valid.

Isaac Gabriel (Expert)
06 December 2018

Give a brief with your identity

06 December 2018

Dear Sir,
It is a valid Will and be informed that in India most of the Wills will be only in handwritings and not typed or otherwise. The other rules are as follows:
The only condition is Beneficiaries under a Will cannot be its attesting witnesses. Other Rules are as follows:
To have the flats transferred to your name or to your children’s names, either of the following may be done:

Gift: (i) With respect to the flat in which your name and your father’s name are shown as owning equal shares (flat A), your father may execute a gift deed in your favour/in favour of your children, gifting to you/them his share in flat A;

(ii) With respect to the flat in which your, your wife’s and your mother’s names are shown as each owning a one-third share (flat B), your mother may execute a gift deed in your favour/in favour of your children, gifting to you/them her one-third share.

Will: (iii) Your father may execute a Will and bequeath his share in flat A to you/your children (such a bequest to you/your children will only come into effect upon the demise of your father);

(iv) Your mother may execute a Will and bequeath her one-third share in flat B to you/your children (such a bequest to you/your children will only come into effect on the demise of your mother).

If your parents execute a gift deed as above, the provisions of section 122 of the Transfer of Property Act, 1882, must be kept in mind, i.e, a gift is considered to be valid only when (i) it is made voluntarily; (ii) it is without consideration; (iii) there has been an offer by the donor; and (iv) the offer has been accepted by the donee, and the donee actually accepts the gift. This will also apply when property is gifted to blood relatives.

Stamp duty has to be paid on a gift deed and shall be payable in accordance with the provisions of the Stamp Act applicable to the state where the property is situated. Gift deeds also have to be registered under the provisions of the Indian Registration Act, 1908, and applicable registration charges have to be paid.

In the case of a gift to a family member, the stamp paper is to be bought in the donor’s name. Also, if your children are minors and it is intended that the gift be made in their favour, please be guided by the Supreme Court judgement passed in 2003 by Justice Y.K. Sabharwal and Justice D.M. Dharmadhikari.

If your parents draw up a Will, (i) the Will has to be in writing, (ii) it has to be executed by you and (iii) it has to be attested by two witnesses. It must be noted that the beneficiaries under a Will cannot be the attesting witnesses to a Will.

There is no specified format for a Will. It could be drawn up on plain sheet of paper and handwritten by the testator.

As per section 74 of the Indian Succession Act, 1925 (Act) no technical terms need be used. However, the intentions of the testator, including the property to be bequeathed and the beneficiaries, must be clearly set out in the Will. The Will must be signed by the testator or his mark affixed thereto or signed by a person as directed by the testator and in the presence of the testator, all in the presence of at least two witnesses, each of whom must also sign the Will.

A Will is not a compulsorily registerable document under section 17 of the Registration Act, 1908, thus it is the testators choice as to whether he wishes to register the said Will. There is no stamp duty payable on a Will.

In both the cases, whether a gift deed is executed or a Will is drawn up, it would be advisable for your parents to state and acknowledge that the name of your father was added in flat A and the name of your mother was added in flat B only for convenience and that all payments have been made/are being made solely by you. This is to mitigate any challenge to your parents having gifted/bequeathed their respective shares in flat A and B.

Please mark “LIKE” if satisfied by my answer.

Kumar Doab (Expert)
06 December 2018

Pls don’t post as AQ and post with your ID and you can get many responses.
Your ID does not mean your email id or phone number etc and don’t post these.
Before attaching any document erase all names, logo, email id, phone number, address etc to maintain confidentiality.
Obtain proper legal opinion in writing from LOCAL counsel specializing in concerned field of law.

Kumar Doab (Expert)
06 December 2018

Same Query;

Why to repeat and be AQ!

Kumar Doab (Expert)
06 December 2018



Dr J C Vashista (Expert)
09 December 2018

Repeated query ???
What is the benefit in wasting time and efforts of experts ???

Kumar Doab (Expert)
11 December 2018

Nominee is mere trustee. Nominee has to distribute the proceeds amongst legal heirs.
You have been advised in detail in all threads initiated by you.
GO thru all threads carefully and do not fall for any advice by any Lawyer/Advocate to indulge in any illegal act.

BY the way who was/is your counsel at LCI or outside LCI?
Who has asked to post query(ies)?
Have you paid any monies to anyone?

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