My father had said long ago in his will that in the unfortunate event of his death his property should be transferred in the name of my elder brother. I am married now but as his only daughter, can I contest for change of will and thus get a share in his property?
—Name withheld on request
India has ‘testamentary’ freedom – the people who make their wills have the freedom to compete to give away any personal property they own, as they wish. (There are two main types of succession: testamentary succession, or made with a will, and intestate succession, or without a will). Certain types of properties are subject to other rules, as in Hindu undivided families, but this does not seem to be relevant in this case.
Your father has decided to leave his property to his son. So, on his death, the property will go to your brother under the will. You will not have a share in the property being bequeathed.
Also note that the will only applies to the passing of the testator, so as long as your father is alive, there is no transfer.
In the absence of any issues such as fraud, coercion or undue influence, there is little you can do to challenge willpower – and even these challenges are extremely difficult, costly, and lengthy to achieve in practice. .
In this situation, it is better that you discuss openly with your father, while he is alive, about some property he has been gifted to you.
Rishabh Shroff is the Partner and Co-Head, Private Client, Cyril Amarchand Mangaldas.
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