What is a Will? How does it affect inheritance?

There are several ways in which wealth, assets, and property of an owner is divided among his successors after his demise. Will is one of the instruments used by the owners to distribute their properties, according to their own free will.

 

What is a Will?

A Will is a legal instrument that gives the creator the right to distribute all his possessions among his legal heirs, according to his own judgement. Recognised as a valid method of succession, a Will enables a person to transfer his/her assets in a manner he/she deems fit.

According to Section 2(H) of the Indian Succession Act 1925, a Will is “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. It also states that it is accepted for the purpose of all testamentary successions in the country. The Indian Succession Act, 1925, applies to Hindus, Parsis, Christians, Buddhists, and Jains in India.

 

Significance of a Will

Any asset owned by a deceased is distributed among his legal heirs. However, this division will be different in the presence and absence of a Will.

Under inheritance laws in India, when a person dies without leaving a Will, this condition is known as intestate. In such a scenario, the property of the deceased will be divided among his legal heirs according to the legal provisions applicable based on his religious faith.

For intestate inheritance among Hindus, Jains, Sikhs and Buddhists, property division among the legal heirs of the late owner is done under the Hindu Succession Act, 1956. Inheritance for Muslims is governed by the Mohammedan law of inheritance. In other cases, the Indian Succession Act, 1925, is applicable.

However, if a person dies leaving a Will, his assets will be distributed according to his wish, keeping in view the general laws of inheritance. Wealth distribution through a Will is known as testamentary disposes property.

 

What makes a Will valid?

For a Will to be executed, it must be valid in the eyes of law. Following factors provide the Will a legal sanctity:

*The person making the Will must be at least 18 years of age under the Indian Majority Act. He/she must be above 21 years of age in case the court has appointed a guardian for them.

*The person must be of sound mind at the time of making the Will.

*The person must be making the Will according to his own wish. This means that the act must be voluntary and must not be done due to any pressure, coercion, undue influence, fraud, misrepresentation, or mistake.

*The Will must be attested by two witnesses at least.

According to the Supreme Court, “the most important point is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark on the Will”.

“A person propounding a Will has got to prove that the Will was duly and validly executed and that cannot be done by simply proving that the signature on the Will was that of the testator as the propounder must also prove that the attestations were made properly as required by Section-63(c) of the Succession Act,” says the Supreme Court.

See also: Role of Karta in a Hindu Undivided family

 

Types of Will in India

There are five types of legally acknowledged Wills in India.

Unprivileged Wills: All the Wills made under Section 63 of the Indian Succession Act, 1925, are known as Unprivileged Wills. All Wills executed by persons other than a soldier, airman, mariner so employed are known as unprivileged wills. They need to be duly signed by two witnesses and the testator in their presence.

Privileged Wills: A Privileged Will is made by any soldier, airman, navy persons, and mariner. Considering the nature of their job, a certain leeway is allowed to the Will makers.

Conditional Will: When a person puts a condition for his Will to be executed, it is known as a Conditional Will. Such a Will comes into effect only after the said condition is fulfilled.

Mutual Wills

The Supreme Court in the case of Kochu Govindan Kaimal and Ors. Vs. Thayankoot Thekkot Lakshmi Amma and Ors case said that a Will is mutual when the two testators confer upon each other reciprocal benefits as by either of them constituting the other his legatee. In a Mutual Will, the executants fill the roles of both testator and legatee towards each other.

Concurrent Wills

In cases where a wide variety of assets are owned by a person in different geographies, he/she can execute separate Wills to make the disposition of the property simpler. While one Will can deal with movable assets, the other with immovable assets. Written by one person, these Wills will be known as Concurrent Wills.

 

Is registration of the Will necessary?

A Will does not have to be registered to have legal sanction. This means that even without registration a Will is legally valid if it fulfils the conditions mentioned above. However, legal experts are of the view that a Will must be registered for its safety and security. Doing so is also advisable to ensure it is not tampered with and has higher authenticity.

However, do mindful of the fact that even if a Will is registered, it can be proven null and void in case it does not fulfil the conditions mentioned above. In fact, mere registration of a Will is not enough to prove its genuineness, the Supreme Court has said. According to the apex court, a Will must fulfil conditions laid under Section-68 of the Indian Evidence Act, 1872, and Section-63 of the Indian Succession Act, 1925.

 

Do I have to pay stamp duty to register a Will?

No, states in India do not charge any stamp duty on Will registration. However, you may have to pay a nominal registration fee to get it registered in the sub-registrar’s office. Will registration fee in New Delhi, for example, is only Rs 21. It is Rs 100, Rs 200 and Rs 1,000 in Uttar Pradesh, Karnataka, and Madhya Pradesh, respectively.

 

Will format

This is my last will and testament.

I …………………….S/o…………………….R/o……………………………..aged About……………………years, presently residing…………………………………………………………………in sound disposing mind and without any pressure from any person do hereby make this will as my last will and cancel all my previous wills and codicils to avoid any dispute or difference regarding my moveable and immovable properties after my death.

I am blessed with

(Give details of the legal heirs namely, wife/son/daughter/ or any other relative which testator wants to mention)

All my above-mentioned children are married and well settled in their respective lives, and they have looked after my health very well.

I am the owner and in possession of

(Give details of movable and immovable properties including bank accounts)

Life is uncertain and I do not know when the god calls me and I don’t know when I leave this beautiful world therefore, during my lifetime I want to make settlement of my all movable and immovable properties to avoid any difference or dispute over sharing my properties among my legal heirs.

Therefore, I am making the present will. So long I am alive I will continue to be owner of all my properties. However, after my death.

(Testator should mention settlement/sharing ratio/arrangement with respect to his movable and immovable properties either in favour of legal heirs or any person of his choice)

I bequeath all my movable and immovable properties to my aforesaid legal heirs as per the arrangement made above.

(I appoint Mr/Mrs……………………S/W/D of……………………..R/o……………………………, and in case of his demise Mr/Mrs……………………S/W/D of …………………….R/o……………………………… as executor of this will)

All my previous will and testament are hereby cancelled.

Signed on this …………………………. day of …………………….201…. in the presence of the following witnesses who have also signed in presence of each other and in my presence. In Compliance of Section 32A of the Registration Act, 1908

Name of the first party (Testator/ Testatrix)

Left hand fingers impressions of Testator/Testatrix

Thumb Index Middle Ring Little

Right hand fingers impressions of Testator/ Testatrix

Thumb Index Middle Ring Little

Signature of Testator/ Testatrix

Certified that the above Will has been signed by the above-mentioned testator in our presence and we have also signed as attesting witnesses in presence of the Testator/Testatrix and in the presence of each other after the contents of Will explained to testator in Hindi (mention local language if any), he understood and agreed with the same on the date and time mentioned above.

Witnesses

1. (Name, father’s name, address)
2. (Name, father’s name, address)

Read also: How to write a will for property?

 

FAQs

What is a Will?

A Will is a legal declaration, expressing the desires of the testator (person making the Will) to be given effect after his/her death.

What is the meaning of intestate?

The state of dying without a Will is known as intestate.

What is a Codicil?

A Codicil is a part and an extension of the Will.

When does a Will come into effect?

A Will becomes effective after the death of the testator.

Who is an executor of a Will?

An executor is a person who has been appointed to administer the estate of the deceased person.

Who can be an executor of a Will?

An executor can be a person who is not a beneficiary in the Will, or any trusted person, such as a family friend, a lawyer, or a chartered accountant.

Is it mandatory to appoint an executor of a Will?

It is not mandatory to appoint an executor, but advisable.

What is probate?

Probate is a certified copy of the Will along with a certificate granted under seal of a court of competent jurisdiction. It is a conclusive proof of the authenticity and validity of the Will. It also establishes the legal position of the executor.

Got any questions or point of view on our article? We would love to hear from you. Write to our Editor-in-Chief Jhumur Ghosh at [email protected]