When someone with significant assets passes away, their legal heirs like sons and daughters usually have the first claim to these assets unless the Will states otherwise. However, there are times when some legal heirs might give up their right to inherit the property in favour of someone else.
Recently, there was such a case in the Bombay High Court where a mother signed a relinquishment deed and gave her share of the ancestral land to the son, while her daughter still retained her inheritance. This meant the brother ended up with a bigger share of the inheritance (his own share plus his mother’s).
But what happens in cases of intestate succession (when there’s no Will) or when legal heirs already possess their own undivided share, possibly from an earlier partition?
Adnan Siddiqui, Partner at King Stubb and Kasiva, said to ET Wealth Online that a release deed is usually necessary when property is shared among several legal heirs (common in intestate succession, or when heirs have an undivided share) and one or more formally want to give up their share in favour of the others.
Essentially, a release deed is a document that allows one co-owner or legal heir to waive their claim to inheritance in favour of another person who can also be a legal heir.
Siddiqui says that if a Registrar refuses to act without a release deed, the recommended course is to obtain a written legal opinion confirming that no release deed is required and place it before the Registrar.
Siddiqui says: “If the registrar office remains unconvinced, the remedy is to move the jurisdictional High Court by way of a writ petition directing the Registrar to act on the Will.”
What precautions should be taken on release deeds to prevent future disputes
A release deed is useful for cofirming that one or more legal heirs have given up their right to the inherited property in favour of someone else.
Siddiqui says that a release deed can clear up any potential comfusion in the future, especially if other legal heirs have a ‘colourable claim.’ It should clearly specify the property involved and the releasor's relinquishment of any right, title or interest, and it needs to be executed by the releasing heir(s) and stamped according to the relevant state Stamp Act.
Also, the release deed must be registered at the jurisdictional Sub-Registrar's office along with identity proof and the property's title chain. Many states charge concessional registration duty for release deeds executed among blood relations.
If the Will is registered, do we need release deed?
The legal position does not change merely because a Will is registered. A Will is a specific testamentary bequest that vests title in the named legatee without any need for other heirs to "release" anything. What registration of a Will does change is the evidentiary strength of the Will.
According to Siddiqui, since a registered Will is kept in safe custody with the Sub-Registrar, it is harder to misplace, destroy or tamper with, and thus it carries a presumption regarding the date and fact of execution, which makes it more difficult for a disgruntled relative to later deny that the Will exists or was validly executed.
However, registration is not a certificate of validity. It does not immunise the Will from being challenged on grounds such as lack of testamentary capacity, undue influence, fraud or a suspicious circumstance in execution.
Siddiqui says: “If a Registrar insists on a release deed despite a registered Will, you need to take a reasoned legal opinion first, and then file a writ petition to the High Court if the registry office does not relent.”