Will is an important instrument through which one can give away his property in accordance to his wish. Everybody is concerned about his property after his death and wants to make sure that it goes in the hands of the right person. The property will devolve by way of law of intestate succession, if a person dies without writing and signing the will. Through a will, one can ensure as how his property and assets should be devolved. Hence, it is recommended by every lawyer that everyone should make a will about his property to ensure his intention.
This article analyses briefly about the aspects of succession under Hindu Law.
Definition of a Will
– Will is briefly defined in Section 2(h) of Indian Succession Act, 1925 which clearly states that “will means 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.” In simple language, will is an instrument by which one can decide the disposition of the property after his death.
Few points or terms are to be kept in mind while framing a will.
- Codicil – It is also an instrument made in relation to will. Codicil is used to explain, alter and adding to its dispositions in the will. Codicil is deemed to be the part of the will. The main purpose of the will is to make changes in the will.
- Executor – It is person appointed by the testator, different from an administrator appointed by the court. The person can be said to be appointed as an executor to the will, after the death of the testator.
- Probate – It is an evidence of the appointment of the executor. The probate is granted to the executor. However, it does not confer any title to the property.
- Letter of administration – It is a type of certificate granted by the competent court to a person, where he is authorised to administer the will.
If the will does not have any executor, an application can be filed in the competent court for grant of letter of administration.
- Attestation of Will – It simply means testifying the signature of executants and testator. Therefore, witness signing the will before the executants does not make it a valid will. Also, it is necessary that both the witnesses sign in the presence of the testator but it is not important that the testator sign in the presence of witnesses.
ESSENTIALS FEATURES OF A WILL
Before discussing about the essential features of the will, some basic concepts:
- A will can be changes and can be altered number of times and there is no legal restriction on that.
- In lifetime, you can withdraw your will anytime.
- A will has to be attested by two or more persons in the presence of the testator.
Now, as we have discussed the basic concept, we can see the essential features of the will:
- Legal Declaration – it is a document which is binding force upon the family of the testator. It also has to be conformity with the law and the executor must be competent. Further, the will must be with respect to the testator’s property.
- Disposition of Property – a testator, by way of a will, bequeath his property to the one of his choice.
- Takes effect after death – A will is only enforceable after the testator’s death. Under section 18 of the Registration Act, it is not compulsory to register a will.
Narain Singh v. Kamla Devi (AIR 1954 SC 280) – In the present case the court stated that mere non-registration of the will does not make it invalid. However, it is suggested to register the will, as it gives a strong evidence about the validity.
Once a will is registered, it is kept safely in the custody of the registrar and is produced only to the testator himself or to an authorised person who produces the death certificate of the testator.
KINDS OF WILL
- Conditional Wills – If testator wants to add a condition, he is free to add any condition of his choice.
In Rajeshwar v. Sukhdeo, the court postponed the will till the wife’s death. As there was a condition in the will.
- Joint Wills – A will can be framed by two or more persons. The will is executed is written in a way that it should be executed after the death of both the testators,
- Mutual Wills – Mutual will confer benefits on each other. But if the legatees and tstators are distinct, then the will is not mutual.
- Privileged wills – This type of will is only for soldiers, airman and mariner. Section 65 of Indian Succession act, 1925 states that the will made by a soldier, airman and mariner, when he is in service, would be a privileged will. Section 66 of Indian Succession Act, 1925 provides the rules to make a privileged will.
WHO CAN MAKE A WILL
Section 59 of Indian Succession Act, 1925 states that “Every person of sound mind not being a minor may dispose of his property by will.”
There are 4 explanations to understand this concept:
- A Hindu woman may dispose by will of any property which she could alienate by her own act during her life.
- An insane person can make a will at the interval in which he is of sound mind.
- A person cannot make will at a position when he does not know what he is doing. (Intoxicated state).
- A deaf or dumb person can make a will if they can prove that they understand what they are doing.
SIGNATURE OF THE TESTATOR
Section 63(a) of Indian Succession Act, 1925 provides that the testator should sign on his mark on the will. If he is unable to sign, then me may execute the will by a mark and by doing so his hand as guided by another person or by a lawyer. Thumb impression is valid.
EXECUTION OF A WILL
After the death of the testator, the executor of the will or an heir can apply for the probate in the court. The court will ask the other heirs of the deceased testator, if they have any objections to the will. If there is no objection, court grants a probate, which is a copy of a will which is certified by the court and it should be treated as conclusive evidence. After all this procedure, will comes into effect.
REVOCABILITY OF THE WILL
Section 62 of Indian Succession Act, 1925 tells about the characteristics of a will which is to be revocable and Section 70 of Indian succession Act, 1925 provides the manner in which the will should be revoked. The revocation of the will is to be made in writing and by an express revocation clause. If there is no clause, then you can make a fresh will which will make the old will invalid. But you have to show the difference.
ALTERATION OF THE WILL
Section 71 of Indian Succession Act, 1925 is used to alter the will, but only after the execution and not before it. Any alteration in the will is not excepted or is inoperative unless the alteration is accomplished by the signature of the testator and the attesting witnesses, and also the memorandum signed by both, testator and witnesses. If these requirements are not fulfilled, then the alteration is not valid.
Will is very important as it decides the successor of your property and assets after your death. And it is recommended to register your firm, although it is not necessary. We can also alter and revoke the will at anytime in lifetime. Also, while framing a will one should keep the law in mind. That’s why everyone engages a lawyer while making a will. As a will is also restricted or is invalid by misrepresentation and concealment.
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Author: Shivam Bansal,
Intern at Lawportal,
Author: Shivam Bansal,
Symbiosis law School, Noida - 2nd Year/ Law Student