Can Ancestral Property Be Bequeathed By Will?

Ancestral property refers to property passed down through generations within a family, and its inheritance is governed by specific laws depending on the community or legal system. Under certain conditions, an individual can bequeath ancestral property through a will, but there are limitations, particularly concerning the rights of coparceners (heirs in a Hindu family) under Hindu law.

Can Ancestral Property Be Bequeathed by Will?

Hindu Law and Coparcenary Rights:

In a Hindu undivided family (HUF), ancestral property is typically held by the family members as coparceners, meaning that each member has an equal right to the property. An individual cannot completely bequeath ancestral property through a will if it is still part of the coparcenary property, as coparceners have a vested right in it.

Individual Share in Ancestral Property:

While the ancestral property itself cannot be fully bequeathed by one coparcener, a coparcener can bequeath their individual share of the property through a will. This would apply only if the coparcener’s share is clearly defined, such as after partition or in cases where the individual has a separate share in the property.

Partition of Ancestral Property:

If the ancestral property has been partitioned, then the partitioned share becomes individual property. In this case, the owner of the share can bequeath it through a will without any restrictions, as the property is no longer considered part of the joint ancestral property.

Testamentary Succession:

Under the law, a person can make a will for their separate property (property acquired after partition or property that is their exclusive ownership). However, the right of inheritance for ancestral property cannot be fully overridden by a will, as the rights of coparceners must be respected.

Legal Heirs' Rights:

Even if an individual attempts to bequeath ancestral property through a will, the legal heirs and coparceners retain their rights. The will can only affect the portion of the ancestral property that the individual has the right to dispose of, and it cannot deprive other legal heirs of their rightful share in the ancestral property.

Legal Actions and Protections

Disputes Among Coparceners:

If there is a dispute regarding the bequeathing of ancestral property, coparceners may approach the court to assert their rights. A partition can be requested to clarify the division of property, allowing a person to bequeath their share.

Revocation of Will:

If there is a conflict between the heirs about the bequeathing of ancestral property, they may challenge the validity of the will or seek its revocation if it violates the inheritance rights of other legal heirs or coparceners.

Consultation with Legal Professionals:

It is advisable for individuals wishing to bequeath ancestral property to consult with legal professionals to ensure the will is in accordance with inheritance laws and that the rights of all legal heirs and coparceners are properly addressed.

Example

Suppose a Hindu man wishes to bequeath his share of an ancestral property through a will. However, if the property is still part of a joint family and has not been partitioned, he cannot will away the entire ancestral property to one individual, as his coparceners have equal rights to the property. If the property is partitioned and he owns a specific share, he can bequeath that share through his will. For instance, if the man has 25% share in the property after partition, he can leave his 25% to a particular heir, but the other 75% of the property remains with the coparceners and cannot be affected by his will.