The fact that one grows old is a harsh reality that we all have to face and accept as time goes on. There is a factor of insecurity that creeps into one's mind. One wants to make sure that the life he has led has been meaningful and dignified in all aspects. A will is a very important legal document, which consists of the rights of an individual after his death. It enables the individual to rightfully leave his assets and wealth to who ever he chooses to.
According to the respective law of succession, when no will is made i.e. intestate, or if an individual dies "intestate", the laws of succession come into play. In India, two important statutes govern succession. These are the Indian Succession Act, 1925 and the Hindu Succession Act, 1956.
What is an Indian Will
Under the Indian Succession Act, 1925, a will has been defined as follows:
"A will is the legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death".
According to Section 59 of the Indian Succession Act, any person of sound mind who has reached the age of majority can make a will. A person who is ordinarily insane may make a will during the time he is sane.
The law applicable to Wills
The Indian Succession Act 1925 applies expressly to wills and codicils made by Hindus, Buddhists, Sikhs, Jains, Parsis and Christians but not to Mohammedans.
Law of Succession
Every law of succession defines the rules of distribution of property in case a person dies without making a will. These rules provide for a category of persons and percentage of property that will develop on each of such persons. However, it must be remembered that it is preferable that one should make a will to ensure that one's actual intension is manifested.
Moreover, one can take into account special circumstances in the family. However, it often happens that, due to ignorance of law, people fail to make a proper, enforceable will. Consequently, confusion ensues and often, the rightful heirs do not receive their fair share.
| 1. |
According to the law of inheritance and succession, if a Hindu male passes away, a Hindu female shares equally with the male i.e. a son and daughter will succeed with equal shares. The wife as well as the mother also gets equal an share. But there is nothing to prevent a Hindu male from bequeathing his entire property to a stranger if he so desires. |
| 2. |
There are diverse, complicated laws of inheritance. A lot of hardship is sometimes caused when a male dies prematurely or unexpectedly. The property passes to the minor children and to the mother of the deceased in equal shares. There are cases where there has been a tragic demise and there is no will, and the surviving wife and the mother of the deceased (although not on good terms) are entitled to equal shares. If there is an office or house, an equal share will go to the mother. Shares of companies are also divided equally. It is difficult to get all the heirs on a common meeting ground to write to the companies to transfer the shares to the names of the respective heirs. All these problems can be obviated if a will is left behind. |
| 3. |
A Muslim wife on the other hand, even though she has to share with other wives if there is more than one wife, cannot be dispossessed because a Muslim male cannot will away more than 1/3 of the estate i.e. 2/3rd of the property must be divided among the family members in the shares laid down in the Shariat Act, 1937. But Mohammedan Law gives the male heirs, the sons, twice the share of the daughters. The widow gets a definite share. |
Who can make a Will?
| 1. |
A person of sound mind, as long as he is not a minor, can make a will. |
| 2. |
If a person is of unsound mind at the time of making a will, such a will is not enforceable. |
| 3. |
A will, obtained by force, coercion or undue influence is a void will, as it takes away the free agency of the person. |
| 4. |
4. A will made under influence of intoxication or in such a state of body or mind, will be void. Thus any person who is of sound mind and is aware, and has clearly stated to avoid confusion in the division of property and assets after his or her death, can make a will. |
Can a minor own property?
Holding of property by a minor is problematic because selling of immovable property belonging to a minor requires court permission, for the sale must be for the benefit of the minor.
Invalid Wills
A will made under intoxication or when a person does not have the mental ability to understand what he is doing. If a will is prepared by a person under the influence of alcohol or has a feeble memory and does not understand the nature of the property he/she owns, such a will can be challenged.
When and how is a Will made?
| 1. |
A will can be made during the lifetime of the individual. This simply means that a person is entitled to make his or her will whenever he or she chooses to do so. |
| 2. |
There is no restriction of law as to how many times a will can be made by a testator. A testator is the person who makes the will and who owns the property and assets. However, only the last will, which is signed before the testator's death, is enforceable. The will has to be executed by the testator, by signing or affixing his marks (thumb impression, stamp etc.) to the will. |
| 3. |
3. Two or more witness shall attest the will, each of which should have seen the testator signing the will. |
| 4. |
4. In some cases, where it is anticipated that there will be a dispute, a will may be videographed. This will show the demeanour of the testator. His state of health and the soundness of his mind may also be apparent. While videography is not specified in the law as being evidence of authenticity, a videocassette of the will, the signing of the will, reading out of the will by the testator and the process of registration, will constitute good evidence. |
Witnesses of the Will
| 1. |
1. A legatee cannot witness a will, neither the husband nor wife of a legatee or any heir of a legatee. A legatee is a person who receives some property or assets from the bequeathor. If such a person does attest the will, such a bequest or appointment shall be void, but the will is valid. Or the legatee can confirm the will, which simply mean that he can acknowledge that the will is valid. |
| 2. |
2. A legatee can be an executor or a witness to prove the execution of the will or the validity of the will if the will is challenged. |
A CODICIL
A codicil is defined in section 2(b) of the Succession Act as an instrument made in relation to a will and explaining, altering or adding to its disposition and shall be deemed to form part of the will. A codicil, unlike a will, is not an independent document but is an appendage to the main document i.e. the will.
If a testator intends to make few changes in the will, without changing the whole will, he can do so by making a codicil to the will. The codicil can be executed in a similar way as the will. One must note that a will or a codicil is not unalterable or irrevocable, which means they can be altered or revoked at any time
ESSENTIAL FEATURES OF A WILL
A will can be made at any time in the life of a person. A will can be changed a number of times and there are no legal restrictions as to the number of times it can be changed. It can be withdrawn at anytime during the lifetime of the person making the will. A will has to be attested by two or more witnesses, each of who should have seen the testator signing the will.
The essential features are:
| a) |
Legal Declaration: It is a legal document, which has a binding force upon the family. If a person dies without making a will, that means he dies intestate, then the laws of succession prevail. In spite of having laws that are well developed in this aspect, there is no uniformity |
| b) |
Disposition of Property: In a will, the bequeathor leaves his property to the person or people he chooses to leave his assets/belongings. A Hindu person by way of his will can bequeath all his property, which he has self-earned. However, he cannot do so when it comes to his share in the Hindu Undivided Family Property in which he is a co-partner.
As a general principle of the Muslim Law, one can only bequeath 1/3rd of one's estate. The remaining 2/3rds will devolve by the law of intestate succession. However if a Muslim couple is married under the Special Marriage Act, they will be allowed to make a will of their entire estate. |
| c) |
Operation after Death: The will is enforceable after the death of the testator |
EXECUTION AND ATTESTATION OF A WILL
| 1. |
The testator shall sign or shall affix his mark to the will, or some other person shall sign it in his presence and by his direction. |
| 2. |
The signature or mark of the testator, or the signature of the person signing shall appear clearly and should be legible. It should appear in the manner that is appropriate and makes the will legal. |
| 3. |
The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen other person sign the will, in the presence and by the direction of the testator, or has received from the testator. |
| 4. |
Personal acknowledgement of his signature or mark, or of the signature of such other person. Each of the witnesses shall sign the will in the presence of the testator. |
| 5. |
Each of the witnesses shall sign the will in the presence of the testator, but it should not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. |
| 1. |
Registration of will: A will can be handwritten or typed and is not required to be registered, even if it relates to immovable property. Registration of a will is optional. Registration does not give any special sanctity or genuineness to the will. Even registration is not compulsory though it can be registered under the Registration Act 1908 or deposited in the sub-registry as stated earlier. |
| 2. |
Signature of registrar: The endorsement of the register is sufficient to prove the execution of the will, if all the attestators of the will are dead and if the testator affirms the contents of the will and put his thumb impression on the endorsement in the presence of the sub-registrar, the sub-registrar could also be considered to be an attesting witness. |
| c) |
Stamping of will: A will or codicil is not requires to be stamped at all. |
REVOCATION, ALTERATION, MODIFICATION AND AMENDMENT OF THE WILL
| a) |
Revocation of will: A will is always revocable during the lifetime of the testator, though the will is stated to be irrevocable. But it must be revoked in manner stated in section 70 of the Succession Act, "No unprivileged will or codicil nor any part thereof shall be revoked otherwise than by marriage or by another will or codicil".
In case of revocation, the testator should give it in writing that he has made certain changes or has revoked the will. It must be signed by the testator and attested by two or more witnesses.
If the testator wants to revoke the will, he can do so by burning or tearing or destroying it completely. It must be done with the intention to revoke the will and mere symbolic destruction is not sufficient like cancellation etc.
There should be a clause stating that the present will is the last will of the testator and any will made prior to this would stand revoked.
The testator cannot revoke the will by just striking it off or scratching it. He must sign it and have it attested by at least two witnesses.
The essence of a will is that its revocable nature cannot be lost even by a declaration that it is irrevocable or by covenant not to revoke it. |
| b) |
Alteration in a will: While executing a will, care must be taken that there are no additions or alterations made in the will and, if made, the testator properly initiates them. Section 71 of the said act provides that no obliteration or other alteration made in any unprivileged will after execution thereof, shall have any effect except so far as the words or meaning of the will have been thereby rendered illegal or undiscernibly unless such alteration has been executed in the like manner as required for the execution of the will. This applies if the alterations are made after the will is duly executed and attested, if made before the execution, this section wont apply.
It is desirable to get the alterations signed by the testator. This is a reason for which a form is prescribed by the High Court at Bombay, for the affidavit required to be made by an attesting witness in support of the petition for probate with the will annexed, is required to state, that the alterations or erasures made in the will were made prior or at the time of the execution of the will by the testator. |
What is a probate? Is it necessary to be obtained in the case of Will
of deceased?
The term "probate", in it's strictest sense, signifies that the copy of the will is given to the executor, together with a certificate granted under the seal of the court and signed, by one of the registrars, certifying that the will has been proved.
Though executors derive his title from the will and not the probate, the probate is still the only proper evidence of the executor's appointment.
The grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off, but only perfects the representatives title of the executor to the property, which did belong to the testator and over which he had a disposing power.
Will & Nomination
Often there is confusion between a will and a nomination. Here, it must be clarified that a nomination is not a will. The nominee merely acts as the trustee. In some instances, the nominee and the beneficiary of the will is the same person. However, at all times, the provisions of the will prevail over the nomination. It is advisable, though, to have the same person as the nominee and the beneficiary of the will, so as to prevent future disputes.
Nominations:
A nomination, in order to be effective, need not be executed as a will but must be in accordance with the formalities required by the particular provision applicable. If the testator, in accordance with the statutory power, has nominated a person to receive a particular sum on his death, that sum cannot, it seems, be disposed of by his "will" except where under the terms of the relevant statutory provision and in the circumstances of the case, the will constituents an effectual revocation of the nomination.
REGISTRATION OF A WILL
Though the registration of a will is not compulsory, it can be registered with the sub-registrar. If, at any time, the testator wishes to withdraw the will, he can do so. A will also can be sealed and kept in safe custody. This will then be released only to the testator himself or, after his death, to an authorised person who produces the death certificate. It is advisable to leave or make two copies of the will properly dated etc.
Execution of a Will
On the death of the testator, an executor of the will or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the will. If there are no objections, the court will grant probate. A probate is a copy of a will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a will.
In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court. Thereafter, if no objection is received, the probate will be granted. It is only after this that the will comes into effect.
Conclusion