Will

G.Padmanabhan (Querist) 25 November 2011 This query is : Resolved
Is a property subject to a charge of a financial institution capable of being bequeathed by a WILL?

If yes, is it necessary to mention the fact of charge in the will.

Can the testator stipulate that the legatee under the will is to pay off the dues against the property that may be outstanding at the time of the death of the testator?

Would our experts please guide?

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R.Ramachandran (Expert) 25 November 2011
Dear Mr. Padmanabhan,
The position in law is very simple.
A person can bequeath only what he owns.
Thus, a testator who owns a property (not withstanding that it is under charge) can bequeath the property.
It is also well settled that a WILL will take effect only after the testator dies, and the WILL would get honoured only if the properties bequeathed have not been disposed of by the testator.
It therefore follows, that if the property is under charge, the beneficiary under the WILL would not be in a position to get the property unless released from such a charge. Therefore, whether or not the testator stipulates in the WILL that the beneficiary under the WILL has to discharge the liability towards the property, it would make no difference.
The financial institution would definitely seek repayment of the amounts before freeing the property from its charge. In case that is not forthcoming, the Financial Institution would take steps to realise its money by resorting to auctioning of the property and remitting the surplus proceeds, if any, to the beneficiary under the WILL.