Wills - Succession

“Will” means the legal declaration of the intention of a testator concerning his property which he desires to be carried into effect after his death under Sec.2(h) of “the Indian Succession Act, 1925”.

 

A Will, also called ‘testament’ is an implement that enables a person with a sound mind not being a minor may dispose of his property by will (Sec.59 of Indian Succession Act, 1925).to dispose of his property to someone whom he wants to give after his death. A Will is intended to dispose of the property.     

 

Registration of will is not mandatory, under the Indian Succession Act, 1925, under section 17 (Act), and according to section 18 (e) of the Registration Act, 1908. There is no restriction on how many times a Will can be made by a testator.  However, only the last Will made before his death is enforceable. Persons who are deaf, dumb, and blind and even an insane person during his sanity can make a Will to be executed by the testator, by signing or affixing his thumb impression on it.  It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will.  

 

When a person dies intestate i.e., dies after executing a will (testate/testament) the law applies is, ‘testamentary succession’. This part of the subject, the law of will deals with ‘Testamentary succession of Muslims, Hindus, Christians, and others. The will of Hindus is covered under See. 30 of the Hindu Succession Act, 1956 and other than Muslims covered under the Indian Succession Act, 1925.  The will of Muslims is covered under Muslim Law.

Hindus/Jains/Buddhists/Sikhs

 

Hindu Succession Act, 1956, applies to the persons of Hindus/Jains/Buddhists/Sikhs.

 

Under Sec.21 of the Special Marriage Act, 1954 that any person whose marriage is solemnized under the Special Marriage Act, 1954, succession of property of such person shall be regulated by the provisions of the Indian Succession Act. However, in case of the marriage of a Hindu, Buddhist, Sikh or Jain solemnized with another Hindu, Buddhist, Sikh or Jain under the Special Marriage Act, such person's succession will be governed by the Hindu Succession Act, and not by the I.S. Act.

 

Male: His property devolves upon his widow, children (including heirs of a predeceased child through such child) and mother in equal parts. In case where none of them are present, the property will pass to his father if he is alive and failing which to his brother, sister and other relatives.

 

Female: Her property devolves upon her husband and children (including children of a predeceased child through such child) in equal parts. In case where none of them are present, property will pass to heirs of her husband and failing them to her mother and father. A distinction is made in such a case between the properties received from the parents of the female and properties received from the husband and the father-in-law. The latter property will pass to heirs of her husband while the former will pass upon the heirs of her father.

 

Mohammedans – Property of a Mohammedan devolves on his or her successors as per his or her personal law. However, estate of persons married under the Special Marriage Act, 1954, shall devolve as per the provisions of the Indian Succession 

Act.

 

Others – Properties of persons following any faith other than the Hindus, Jains, Sikhs, Buddhists and Mohammedans and Parsis shall devolve as per the provisions of the Indian Succession Act.

 

A Will can be revoked at any time during the life of the testator.

 

A person who is dead at the time of the death of the testator, estate will devolve on the legal heirs of dead person.

 

Properties which are self-acquired can be disposed of under a Will. Properties acquired by inheritance or gift, etc. and held exclusively can also be subject matter of Will. It is also possible for a member of a HUF to transfer his share in the properties of HUF under Will. Tenancy rights not being transferable should not be made a subject matter of Will. 

 

A Mohammedan under Will can bequeath only 1/3rd of his property, the remaining 2/3rds part shall devolve on legal heirs as per the Mohammedan Law. 

 

Any person may be appointed as an executor to carry out instructions of the testator and has the power to collect, realize and distribute the estate of the deceased. On refusal of the appointed person to act as an executor, the competent court is authorized to appoint an appropriate person.

 

A Will can be revoked at any time by the testator by a codicil by correcting the original Will during his life as per S. 71 of the I.S. Act. 

 

Registration of a Will is optional. If desired it can be registered with the Sub-Registrar as per the provisions of S. 40 of the Indian Registration Act. A revocation of a registered Will should be registered. It is preferable to register Wills made subsequent to a registered Will. Registration grants protection and secrecy to a Will.

 

A probate is the grant of administration of the estate by the court of competent jurisdiction on the basis of Will. A probate provides the conclusive evidence (i) of the execution of a Will (ii) of the legacies and (iii) of the legal character of legatees 

by confirming validity of a Will. It can be granted only to an executor.

 

Wills executed outside the cities of Calcutta, Madras and Bombay in respect of immovable properties situate outside these cities are not subject to the condition of obtaining probate before getting advantage of any such Will.

 

Section 118 of I’S. Act provides that no person having nephew or niece or any nearer relation, shall have power to bequeath any property to religious or charitable uses except (a) A Will by which the testator bequeathed his property to religious or charitable uses was executed not less than twelve months before the death of the testator, and (b) Such Will was deposited within six months from its execution in some place provided by law for the safe custody. But Section 118 of the I.S. Act is not applicable in case of Hindus, Buddhists, Sikhs and Jains.

 

Where a Hindu dies intestate it is not necessary in every case to obtain a Letter of administration to the estate of the deceased to establish a right to any part of the property of the deceased.