Can my mother make a will of the share she owns of ancestral land

787 votes

Your mother has been incorrectly advised. If the ancestral property (or her share in ancestral property) stands in her name, she is the absolute owner of that share, and she has full testamentary freedom over it. Under Section 14 of the Hindu Succession Act, 1956, any property possessed by a Hindu female—whether inherited, received on partition, or otherwise—becomes her absolute property. Once her share is recorded in her name, it ceases to be “ancestral” in her hands and becomes her separate/self-acquired property for legal purposes. Accordingly: • She can validly execute a Will bequeathing her share to any person of her choice. • She is not restricted only to gifting the property during her lifetime. • A Will takes effect after her death, whereas a gift takes effect immediately—both are legally permissible modes of transfer. • There is no legal prohibition on making a Will merely because the property was originally ancestral. The only limitation would be if: • The property is still undivided joint family property, and • Her specific share has not been ascertained or recorded. Even in such cases, courts have consistently held that a co-sharer may bequeath her undivided share by Will, which will take effect once partition is carried out. Therefore, the statement that she “can only gift and cannot make a Will” is legally incorrect. If her intention is to retain control during her lifetime and ensure distribution after death, a registered Will is the appropriate and safer instrument. A gift is advisable only if she wishes to transfer ownership immediately and irrevocably. In short, she can lawfully execute a Will for her share of the property, and there is no requirement in law that she must transfer it only by way of gift.

Advocate Yuganshu Sharma LawRato

604 votes

Under Indian law, your mother has the absolute right to dispose of her share in ancestral property through a Will or Gift Deed. Once a share is defined/vested in her name, it is treated as her self acquired property. The deed writer's advice is incorrect; she is not restricted to only gifting it. A Will allows her to retain ownership during her lifetime while ensuring the property passes to her chosen heirs after her death.

Advocate Pankaj Bajaj LawRato