Laws of Inheritance – Wills

The term ‘Will’ defined under ‘Section: 2(h)’ of The “Indian Succession Act, 1925”, is a legal declaration of the intention of a Testator with respect to his property, as desired by him to be carried into effect after his death. A Testator has the power to appoint any person as a beneficiary under the Will. It is a disposition of property made by a person (“Testator”) during his lifetime and is revocable or variable by him at any point during his lifetime.

The Indian Succession Act, 1925 (“the Act”) is the dominant legislation governing Wills in India. The Act was passed in 1925 with a view to create a consolidated legislation that would substitute Indian Succession Act, 1865; the Hindu Wills Act, 1870; the Succession Certificate Act, 1889, among others, all of which stood repealed. The Act is inapplicable to Wills made by Muslims. Certain provisions apply only to non-Hindus such as the Jews, Christians and Parsis and the Act also does not apply in cases where customary laws apply. Wills made by Muslims are governed solely by their religious texts. No codified law exists currently that governs Muslim succession by Will.

Any person who has attained 18 years of age and is of sound mind may execute a Will. It can be handwritten, typed, drafted by the Testator himself or by his Attorney. It must be signed by the Testator in presence of atleast two witnesses who must also sign as witnesses to the document. Other criteria which make a Will valid are that the Testator must be aware of the contents and he must have executed the document voluntarily in the absence of coercion or undue influence.

There is no strict form or format prescribed for the drafting of Wills. It need not contain any legal terminology and is to be drafted with the only aim to clearly convey the intention of the Testator.

The Testator may at any time after the execution of the Will alter, add or delete the contents of the Will by executing a Codicil. A Codicil is an extension of the Will and forms a part of it. The Testator may make any number of Codicils revising the Will. However, executing a new Will is recommended in place of several Codicils making many alterations, as the last Will revokes all existing Wills executed upto that date.

It is always advisable to register a Will to prevent any tampering. This also ensures that a copy of the Will is always available with the Registering Authority and the hazard of its loss or destruction is negated. However, registration of the Will is not mandatory under law. No stamp duty is required for executing a Will or codicil. However, stamp duty is to be paid for its cancellation/ revocation.

A Will may also be “Deposited” for a prescribed fee under section 42 of the Registration Act, 1908. The original Willmay bedeposited with any Registrar in a sealed cover superscribed with the name of the testator and his agent (if any) and with a statement of the nature of the document. On the death of the testator who has deposited a sealed cover, one can make an application to the Registrar to open the same. On production of a valid Death Certificate, the Registrar in the applicant’s presence, will open the cover, and, at the applicant’s expense, cause the contents thereof to be copied. This acts as a safe deposit for the Will. However, what has to be borne in mind is that, if another Will is executed subsequently, that Will shall be the final valid Will even if it is or is not deposited or registered.

A Will may be Privileged or Unprivileged based on the testator’s status or office. It may be Conditional, Joint, Mutual or Concurrent based on its contents. The various kinds of Wills are explained below.

Privileged and Unprivileged Wills: Wills executed under section 66 of the Act, by a soldier employed in an expedition or engaged in actual warfare, or by an airman so employed or engaged, or by a mariner being at sea, are called Privileged Wills. The rules of execution for these Wills differ drastically from unprivileged Wills. Wills executed by persons other than a soldier, airman or mariner, according to the provisions of section 63 of the Act are called Unprivileged Wills.

Conditional or Contingent Wills: A Will may be expressed to take effect only in the event of the happening of some contingency or condition, and if the contingency does not happen or the condition fails, the Will is not legally enforceable. The word “contingent” is used when referring to the happening of an event, and the word “condition” is used when referring to the commission or omission of some act. A Conditional Will is invalid if the condition imposed is invalid or contrary to law.

Joint Wills: A Joint Will is a Will disposing the properties of two or more persons. Where a Will is joint and is intended to take effect after the death of both, it will not be enforceable during the lifetime of either. Joint Wills are revocable at anytime by either of the testators during their joint lives, or after the death of one, by the survivor.

Duplicate Wills: When a testator makes a Will in duplicate, for the sake of safety, one to be kept by him and the other to be deposited in the safe custody with a bank or executor or trustee it is referred to as a Duplicate Will. If the testator destroys or damages the Will that is with him, it is considered a revocation of both Wills.

Mutual Wills: A Will is mutual when two Testators confer upon each other reciprocal benefits by each of them constituting the other his legatee. The surviving Testator receives benefits from the deceased. It is always advisable that the survivor execute a fresh Will bequeathing their estates after them.

Concurrent Wills: Generally, a man should leave only one Will at the time of his death. However, for the sake of convenience a testator may dispose of some properties in one Country by one Will and the other properties in another Country by a separate Will. These Wills are termed Concurrent Wills.

Holograph Wills: Such Wills are written entirely in the handwriting of the testator.

In conclusion, executing a Will is a simple step one could take in securing the proper distribution of his assets after him. It ensures that the assets of the deceased are amicably distributed in the way in which he intended and desired. The Will is gaining more and more importance in the wake of families feuding over properties of their ancestors. Thoroughness in drafting and proper execution of the Will is of utmost importance.

(The Author was a Associate in the Real Estate Team, Jayanth Pattanshetti Associates, Bangalore)