Every individual wants to make sure that at any point of time he can look back and feel content that his life has been meaningful and dignified. As a natural extension, he would also wish that even he is no more, there is dignity maintained in all post death issues that have to be handled. If he owns property he would be concerned about the state of affairs regarding his property after his demise. It would be an innate desire that his wishes with respect to his assets and property be followed after his death. This is where the significance of a legal document – the Will – comes in.
A Will is an important document which enables any living person to rightfully declare how he intends his assets and wealth to be divided / distributed after his death. In a way a person can ensure that his wishes with respect to his assets and property are followed dutifully and peacefully even after his death. There often arise complexities when a person dies without a Will. Making a Will is a little effort that goes a long way in avoiding any turmoil for the family after an individual’s death. Some people try and execute writings that they have prepared themselves or with the help and advice of well-meaning friends or relatives. However these often turn out to be futile in law during the time of implementation after the death of the person. The crux being that the absence of a will or the invalidity of a will or parts of a will often generates problems for the legal heirs and successors.
After the death of a person, his property devolves in two ways:
According to the respective law of succession, when no will is made- i.e. intestate
By way of will i.e. testamentary
LAW OF SUCCESSION
The laws of inheritance are diverse and complicated. The rules of distribution of property in case a person dies without making a will are defined by every Law of succession. These rules provide for a class of persons and percentage of property that will be inherited by such persons. It must be remembered that it is preferable that one make a will to ensure that one’s actual intension is manifested.
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. When a male dies unexpectedly or where there has been a tragic demise and there is no will, it often creates problems for the legal heirs and successors. This can result in unintended injustice. In case of the demise of the man, the property passes to the minor children, the surviving wife and to the mother of the deceased (although not on good terms) in 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. But all these problems can be obviated if a will is left behind.
According to the law of inheritance and succession, if a Hindu male passes away,
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 an equal share.
There is nothing to prevent a Hindu male from bequeathing his entire property to a stranger if he so desires.
In case of a Muslim male, he cannot will away more than 1/3 of the estate i.e. 2/3rd of theÂ property must be divided among the family members in the shares laid down in the Shariat Act, 1937. Further,
A Muslim wife cannot be dispossessed â€“ even though she has to share with other wives if there is more than one wife.
Even though she has to share with other wives if there is more than one wife.
The widow gets a definite share.
Mohammedan Law gives the male heirs, the sons, twice the share of the daughters.
THE LAW APPLICABLE TO WILLS
India has a well developed system of succession laws that governs a personâ€™s property after his death. The Indian Succession Act 1925 applies expressly to wills and codicils made by Hindus, Buddhists, Sikhs, Jains, Parsis and Christians but not to Mohammedans as they are largely covered by Muslim Personal Law.
The Indian Succession Act, 1925
Hindu Personal Laws
Muslim Personal Laws
The Indian Registration Act, 1908
According to 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.
Important postulates of a will are as follows:
Legal declaration: A Will is a legal declaration. The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it. It must be signed and attested, as required by law.
Disposition of property: The declaration should relate to disposition of the property of the person making the Will.
Death of the Testator: A will becomes enforceable only after the death of the testator. It gives absolutely no rights to the legatee (the person who inherits) until the death of the testator. It has no effect during the lifetime of the testator.The testator can change his will, at any time prior to his death, in any manner he deems fit.
Revocability: The essence of every Will is that it is revocable during the lifetime of the testator.
PERSONS COMPETENT TO MAKE A WILL
According to Section 59 of the Indian Succession Act, any person of sound mind who has reached the age of majority.
The following persons cannot make a will:
Lunatics, insane persons.
Minors i.e. below 18 years of age. In case a guardian is appointed to a minor, such minor reaches age of maturity only at the age of 21 years.
Persons who are deaf or dumb or blind are not, thereby, incapacitated in making a will, if they are able to know what they do by it.
A person, who is ordinarily insane, may make a will during an interval while he is of sound mind.
No person can make a will whilst he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, so that he does not know what he is doing.
CERTAIN TERMS RELATED TO WILL
EXECUTOR OF A WILL
An executor is the person appointed ordinarily by the testators by his will or codicil to administer the testators property and to carry into effect the provision of the will.
A Codicil is an instrument made in relation to a Will explaining, altering or adding to its dispositions. It shall be deemed to form part of the Will. In case the Testator wants to change the names of the Executors by adding some other names, this could be done by making a Codicil in addition to the Will, as long as there are no other changes required to be made in the main text of the Will.
It may be that the Testator wants to change certain bequests by adding to the names of the legatees or subtracting some of them. It may be some Beneficiaries or Executor may be dead and the names are required to be removed. All these can be done by making a Codicil.
The Codicil must be reduced to writing.
It must be signed by the Testator and attested by two Witnesses.
LETTER OF ADMINISTRATION
This is a certificate granted by the competent court to an administrator where there exists a Will, authorizing him to administer the estate of the deceased in accordance with the Will, where the WILL does not name any executor. An application can be filed in the court for grant of Letter of Administration for the property in accordance with law where the deceased has died intestate.
Probate implies 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. The application for probate shall be made by petition to the court of competent jurisdiction. A copy of the last will and testament of the deceased should be annexed to the petition. The copy of the will and the copy of the grant of administration of the testators estate together, form the probate. It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator. A probate is obtained to authenticate the validity of the will. The probate is still the only proper evidence of the executors 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 which did belong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator. Probate proceedings cannot be referred to Arbitration. The probate court
(whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased.
A SUCCESSION CERTIFICATE
Succession Certificate can be granted by the court to realize the debts and securities of the deceased and to give valid discharge. A succession certificate is a certificate which, when granted to a person, empowers the person to receive interest or dividends or negotiate the transfer or any of them with respect to the securities of a deceased person. The term Securities denotes any bond, stock, debenture or security. He is required to dispose of the amount so realised in accordance with the rights of the person entitled thereto. The person requiring the Succession Certificate may file an application in the
court, where the properties of the deceased relative are situated or where he / she normally resided. Depending on the value of the estate of the deceased, the matter shall go to the type of court, which can conduct cases for that value. This is known as pecuniary jurisdiction of the court, with the names of all other heirs of the late relative as the respondents in the matter, who may issue a notice to all concerned. A newspaper notice is also issued apart from mandatory notice to the respondents upon
the expiry of the time period (normally one and a half months) from the date of publication of the notice after the respondents have given their no objection. The court passes the orders for issuance of the Succession Certificate to the person/s making such an application. Judicial Stamp papers of sufficient amount (as per the prescribed court fees structure) are to be submitted in the court, where after the Certificate is typed by the court staff, duly signed and sealed and delivered. The certificate takes about 3-4 months from date of filing to receive your certificate.
WILL & NOMINATION
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. At all times, the provisions of the will prevail over the nomination. It is advisable to have the same person as the nominee and the beneficiary of the will, so as to prevent future disputes. 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.
ATTESTATION OF A WILL
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.
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.
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.
Personal acknowledgement of his signature or mark or of the signature of such other person is needed. Each of the witnesses shall sign the will in the presence of the testator.
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.
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.
PROCEDURE FOR REGISTRATION :
A Will is to be registered with the registrar/sub-registrar with a nominal registration fee. The testator must be personally present at the registrars office along with witnesses. The endorsement (signature) of the register is sufficient to prove the execution of the will; if at all the testators 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. A will or codicil is not required to be stamped at all.
FORMS & FORMALITIES TO MAKE A WILL
Form of a Will: There is no prescribed form of a Will. In order for it to be effective,
It needs to be properly signed and attested. The Will must be initialled by the testator at the end of every page and next to any correction and alteration.
Language of a Will: A Will can be written in any language. No technical words need to
be used in a Will. The words used should be clear and unambiguous so that the intention of the testator is reflected in his Will.
Stamp Duty: No stamp duty is required to be paid for executing a Will or a codicil. A Will need not be made on stamp paper.
Attestation: A Will must be attested by two witnesses who must witness the testator executing the Will. The witnesses should sign in the presence of each other and in the presence of the testator. However, according to Hindu Law, a witness can be a legatee. Under the Parsi and Christian law, a witness cannot be an executor or legatee. A Muslim is not required to have his Will attested if it is in writing.
Registration: Under section 18 of the Registration Act the registration of a will is not compulsory. The registration is strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity. A Will must be proved as duly and validly executed, as required by the Indian Succession Act. Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen. It shall be released only to the testator himself or, after his death, to an authorized person who produces the Death Certificate. The cover should be super scribed with the name of the testator or his agent with a statement of the nature of the document. An amount of Rs. 1,000/- will be charged as fee. The deposited cover may be withdrawn by the testator or his agent on payment of prescribed fee of Rs. 200/-