Deposit of will when donation to charity is conditional

Querist : Anonymous (Querist) 07 February 2025 This query is : Resolved
Hi,

The law seems to mandate the deposit of a Will, made in favour of charity, within 6 months of execution by the testator, for the Will to be treated as valid.

However, the Will is being considered in this manner, where the assets are to be initially bequeathed to a family member, and in the further event of no Will existing of that family member, the assets are then to be donated to a charity or government.

In such a case, when should the Will be deposited, say with the Registrar, for the said Will to be treated as valid, in accordance with the above-said law regarding bequest to charity?

Sorry for being anonymous, but it's important.

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This discussion clarifies the rules around depositing a Will that includes a donation to charity in India. Initially, it was thought a Will had to be deposited within six months of execution to be valid. However, further discussion revealed that Section 118 of the Indian Succession Act, which mandated this, is not applicable to Hindus, Buddhists, Sikhs, and Jains. Furthermore, the Supreme Court has declared Section 118 unconstitutional, meaning there is generally no requirement to deposit a Will for charitable causes to be valid.

kavksatyanarayana (Expert) 08 February 2025
The law seems to mandate the deposit of a Will, made in favour of charity, within 6 months of execution by the testator, for the Will to be treated as valid.

T. Kalaiselvan, Advocate (Expert) 08 February 2025
a Will made for donating property as charity can be deposited with the Registrar of Wills in India, as per the Indian Succession Act, 1925, which allows for the registration of Wills including those with charitable bequests

Dr. J C Vashista (Expert) 09 February 2025
1. Yes, the subject will has to be deposited with Registrar of Charity.
2. Second part of query, inter alia, ".....where the assets are to be initially bequeathed to a family member, and in the further event of no Will existing of that family member, the assets are then to be donated to a charity or government." is vague and not clear. However, last will shall prevail.
3. Validity of the Will is altogather a different subject which has to be proved in terms of section 68 of Indian Evidence Act, 1862 read with Section 63 of Indian Succession Act, 1925

Querist : Anonymous (Querist) 10 February 2025
Thanks for the replies. The Will is being considered in a manner where initially the assets would be bequeathed to a family member, and in case the said family member does not leave behind a Will of their own, only then the assets would be bequeathed to charity.

• Is it correct to say the initial Will needs to be deposited within 6 months of coming into existence, regardless of the fact that donation to charity would be uncertain and a later event?

kavksatyanarayana (Expert) 14 February 2025
Section 118 of the 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. However, Section 118 of the I.S. Act is not applicable in the case of Hindus, Buddhists, Sikhs and Jains.

Querist : Anonymous (Querist) 14 February 2025
Thanks for clarifying that. The Indian Succession Act seems to be drafted in a rather strange manner. Section 118 alone gives an impression that it does not apply to just Parsis. However, it appears it is stated elsewhere in the Act that the said part of the law does not apply to people of other religions as well, which were stated by you above.

I ended up looking into this further, and it appears Hon'ble Supreme Court has even went ahead and declared Section 118 of Indian Succession Act as unconstitutional, in John Vallamattom & Anr. vs Union of India, (2003) 6 SCC 611.

In light of all of this, it appears there is no requirement for depositing any Will, for charitable causes, by anyone, for the said Will to be treated as valid.

kavksatyanarayana (Expert) 15 February 2025
Yes in my opinion........................................................

Querist : Anonymous (Querist) 16 February 2025
Thanks for your help, it is a huge relief knowing all of this. I had mentioned my findings above, after your reply, just so that those could benefit others.

kavksatyanarayana (Expert) 16 February 2025
ok.................................................................................................

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