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Can my son, daughter-in-law be the two witnesses to my Will?

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I  plan to will my estate to my son and daughter-in- law who live with me. I understand that the will should be signed by two witnesses. Can my son and daughter-in-law be the witness to my will?

—Name withheld on request

 

As per the provisions of the Indian Succession Act, 1925, each Will is required to be attested by two or more witnesses, each of whom has seen the testator sign in their presence. However, as per the Indian Succession Act, 1925, a beneficiary under a will cannot be a witness to the same and hence in the facts of your case, the will cannot be attested by your son and daughter-in-law and the same will have to be attested by two or more persons who are not beneficiaries.

The testator needs to either execute the will or acknowledge the execution of the will before the witnesses. 

Further though this is not mandatory, it is advisable that the witnesses be someone younger than the executor of the will. Also there is no requirement for registration of the will under the Indian law.

 I own a flat in Vile Parle (East), a suburb of Mumbai. I intend to gift the flat to my daughter and son-in-law. What will be the stamp duty payable on the gift deed and will the document need to be registered?

—Name withheld on request

 

The stamp duty payable on the share of the flat which is transferred to the daughter shall be Rs500 and 1% of the market value of the flat. 

However, the stamp duty payable on the share of the flat being gifted to the son-in-law will be as per government prescribed stamp duty rates which are linked to the market value of the flat. 

This is because under the Maharashtra Stamp Act, 1958, stamp duty on gift deed of residential flat to spouse or lineal ascendant or descendant is nominal and since the son-in-law will not fall within the definition of the aforementioned exempted persons, the stamp duty on transfer of rights in immovable property in favour of the son-in-law will be as per any other transaction of sale and purchase of immovable property. 

However, if your daughter and son-in-law desire to jointly hold the flat, then upon completion of the gift in favour of your daughter, she can vide a separate gift deed give 50% share in the flat in favour of her husband, i.e your son-in-law.

However, the gift deed will require mandatory registration before the registrar concerned.

 

 Hemang Parekh is a partner and Mitali Naik is an associate partner at DSK Legal

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