Wills: Making of a Will in India

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Will is a legal document that is made by a person who wishes to bequeath his property to certain persons after his death. You have to make a Will to distribute all your financial products and your wealth which were bought by you in the manner you wish to and legally without any fuss to whoever concerned, if not there will be fights over it. First testamentary power of a Hindu was admitted in Bengal. If anyone who does not make a Will then his property will pass on by way of intestate law, so it would be better that one makes a Will which clearly states his intentions on how his property should be transferred. Will, its origin and growth was not known to Hindus until their contact with Muslims grew, who had the knowledge of a Will and thus it helped Hindus in making a testamentary form of writing in relation to their property and thus it became a common practice in India. Will takes effect only after the death of the testator or the person who makes it and it is a unilateral document which can be revoked and changed by the maker at any time and it has been explained under Section 63 of the Indian Succession Act 1925.

Indian Succession Act, 1925 was enacted in India during British period itself and it is applied to all Hindus, Buddhist, Sikh, Jains but does not govern Muslims as they are governed by Muslim Law. Inheritance and succession law is very vast and complicated in nature. Will can be made by any person who is not a minor and of sound mind on a plain paper and which need not be put on stamp paper and you can write it in your own hand writing also. Will is made by a person who after his death entrusts on the living person to carry out his wishes where disposition of his property will take effect only post his death. A person who is making hisWill must understand that he will be giving away his property to certain persons and have a complete knowledge of the extent of his total property and also must know the conditions that are put in the Will. A deaf, dumb and blind person can also make a Will if they understand the provisions that are put in the Will but a person who is intoxicated and makes a Will then that Will is invalid. A declaration of the testator to revoke previous Will can be done and only the Will that is prevails in last is can be enforced. A share in the property can be given even to a lunatic, a minor or anyone under a Will.  Just because a Will is lost does not mean that it can be revoked but if it is intentionally destroyed by testator it will be deemed to be revoked.

There are many types of Will like Privileged Will, Conditional Will, Joint Wills, Duplicate Wills, Concurrent Wills, and Holograph Wills. Privileged Will is explained under Section 66 of the Indian Succession Act which states that a soldier in an actual warfare, airmen or marine at sea who execute Wills are privileged wills.  Upon a condition being fulfilled only a Will can be enforced, that is called a contingent Will and if that condition does not occur then the Will cannot be legally enforceable. When 2 or more people jointly make a Will is called a Joint Will which intends to take effect only after the death of all the parties and it cannot be enforced if one party is alive and other dead. A maker of the Will makes a duplicate Will and keeps it in a safe deposit in a bank will be a duplicate Will. If a testator makes a Will that is applied in one country and another Will in another country to dispose of different properties in different country it will be a concurrent Will. A Will that is written completely by ones handwriting is called a Holograph Will. With regard to revocation a Will can be revoked when the testator with his own interest puts it in writing under revocation clause all prior Wills and Codicils made can be revoked.  A deed of revocation can be made in the same way as a Will. A testator can burn, tear the Will to revoke a Will. Any language can be used to make a Will and it can be made in any form but it should be clear and readable to understand its points.

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In Narinder Singh Rao vs AvmMahinder Singh Rao &Ors (22 March, 2013) Supreme Court held that a Will has to be attested by two witnesses to be valid and if it is in relation to transfer of property a Will has to be registered. In another case Savithri and others Vs. KarthyayaniAmma and others, (12 October 2007) Court had held that just because natural heirs get lesser share in the property does not mean that there is something suspicious in it.The main work of the court is to determine the actual intention of the testator from the Will.

There is a restriction to transfer of a property through a Will that is made to a person who is unborn as it is invalid. A will that is made through fraud, coercion, undue influence is completely invalid Will. If any Will is not certain and is completely uncertain with regard to its objects and subject then it will be invalid Will. A Will can be void if there is illegal condition in it, like the condition that cannot be executed or which is forbidden by law or against to public policy. Anybody can challenge a Will and they have to prove in the Court that all previous Will supersedes the present Will that is presented by them before the Court. If you create a Will today, it will save your family’s time in future, where they need not run around to lawyers for getting a share in the property, after you leave this world. So do prepare a Will.

by Sushma Javare.

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Reference:

  1. Legal Provisions Regarding Wills in India under the Hindu Law http://www.shareyouressays.com/117177/legal-provisions-regarding-wills-in-india-under-the-hindu-law
  2. How to make a will in India and its importance? http://www.jagoinvestor.com/2010/11/how-to-make-a-will-in-india-and-its-importance.html
  3. Types of Wills http://www.vakilno1.com/wills/types-of-wills.html
  4. Execution Of A Will http://www.legalservicesindia.com/article/article/execution-of-a-will-1143-1.html
  5. An Overview of Wills under Hindu Law http://www.legalserviceindia.com/articles/will_hindu.htm
  6. Wills Under Indian Succession Act 1925 http://www.helplinelaw.com/real-estate-wills-probate-and-trust/WISA/wills-under-indian-succession-act-1925.html