Can we make WILL of properties we not own during lifetime

964 votes

Yes, a Hindu mother can bequeath her lawful share in her son’s property through a Will, provided the son has died intestate (without leaving a Will). On the son’s death, his property devolves upon Class I heirs under the Hindu Succession Act, which includes the mother. Even if her name has not yet been formally entered in the property records, her right in law comes into existence immediately on the death of her son. She is legally entitled to make a Will for her share. However, for clarity and to avoid disputes, it is advisable that she first get her name mutated in the revenue/property records by way of a succession application or legal heir certificate. Once that is done, her Will would carry stronger evidentiary value, though even without mutation her right is valid in law.

Advocate Adarsh Kumar LawRato

939 votes

Based on the facts provided, as a Hindu mother, the right to include in a will any property or share of property acquired after the intestate death of a son depends on whether the mother has obtained a recognized legal share in that property under the Hindu Succession Act, 1956. Upon the intestate death of a Hindu son, his property devolves equally upon his Class I legal heirs, which includes the mother, widow, and children of the deceased son. If the mother has a rightful legal share in the property according to succession law, she becomes a co-owner of that property immediately after the son's death, even if her name is not yet recorded in the property documents. The mother’s interest exists by operation of law, and it is not dependent upon actual mutation of her name in the revenue or property records. Therefore, the mother is legally entitled to make a will bequeathing her share in those properties, acquired as a legal heir after her son’s intestate death, during her lifetime. It is permissible under Indian law for her to execute a will for her share, and this will be legally valid and enforceable after her demise. However, for better clarity and to avoid future disputes, it is advisable that she takes steps to get her name mutated in the property records during her lifetime to reflect her share as per succession law, keeping updated documentation for smooth succession as per her will. In summary, once the mother obtains rights as a Class I heir in her deceased son’s property by operation of the Hindu Succession Act—even if not yet reflected in the records—she can legally include and bequeath her share in her will. Mutation of her name is not a prerequisite for executing such a will, though it is recommended for practical reasons.

Advocate Yuganshu Sharma LawRato