Property Law Research Paper LAW OF WILLS IN INDIA Submitted By-Ishani Mehta BA. LLB -2011 Section-A (22 November, 2012) CONTENTS- * Definition * Key Terms * Different types of wills * Essential Clauses of a will * Restrictions or Limitations for making of a will under The Indian Succession Act 1925 * Registration of a will * Property, which can be, disposed of by Will * Principals of rate able abatement in case heirs do not give consent. * Probate of a will * Muslim laws on wills in India * Revocation of a will * Revocation of a will by Muslims * Codicil * Who can be a devisee under a will?
Definition – Will is the legal declaration of a person’s intention which he wishes to be performed after his death and once the Will is made by the testator it can only be revoke during his lifetime. OR Will means the legal declaration of the intention of a testator with respect to his property, which he desires to, take effect after/*appointment of Executor by the testator, the Court may appoint a person called ‘Administrator’ to execute thee will. OR The term ‘Will’ is defined under ‘Section: 2(h)’ of The “Indian Succession Act, 1925”, means the legal declaration of the intention of a testator with espect to his property which he desires to be carried into effect after his death. A testator is authorized with a power to appoint any person as beneficiary of his Will whereas ‘Section: 5’ deals with the law regulating succession to deceased person’s moveable and immovable property. My interpretation of a will- A Will or testament as it is often called is a legal declaration by which the testator names one or more persons to manage his/her estate and provides for the transfer of his/her property at the time of death. A Will can be made by anyone who is above 21 years of age in India.
It can be seen as a statement made by a testator in the written form stating the manner in which his estate/property must be distributed after his death. A Will being a testamentary document comes into effect after the death of the testator and if the person dies without writing any Will then he/she is said to be have died intestate. The person in whose favour the testator bestows the benefits is called the beneficiary or legatee. A Will is otherwise known as a Testament. KEY TERMS- * Codicil- Codicil is an instrument math in relation to will. It is a part of the will. Abatement of Legacies- When a testator bequeaths more than one third of the property, and the heirs refuse to give consent, it is to be adjusted accordingly. * Lapse of Legacy- If the Legatee does not survive, the bequest (Property under will) is distributed as if there is no will. DIFFERENT TYPES OF WILLS- A testator who has right to make a Will for the future benefits of his family members which will take effect after his death, the there are certain types of Wills which has to be looked into: 1. Privileged ‘Wills’: As it can be understood from the word privilege provided to certain persons.
A privileged Will is one which is made by any soldier, airman, navy persons, mariner who are willing to dispose of their estate during their course of employment. A soldier includes officers and all other rank officers of service but does not include a civilian engineer employed by the army, having no military status. A soldier while making an instrument of ‘Will’ must have attained the age of 18 years and where a will made by the soldier is in the oral form, will be valid only for a month though a written Will always remain operative.
A privileged Will may be revoked by the testator by an unprivileged Will or codicil, or buy any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged Will, or by the burning, tearing or otherwise destroying the same by the testator. 2. Unprivileged ‘Wills’: Wills executed according to the provisions of ‘Section 63’ of the ‘Indian Succession Act, 1925’ are called Unprivileged Wills.
An unprivileged Will is one which is created by every testator not being a soldier, airman, mariner so employed. An unprivileged Will like Codicil can be revoked by the testator only by another Will or by some writing declaring an intention to revoke the same and to be executed in the manner in which an unprivileged Will can be executed under the Act or by burning, tearing or destroying of the same by the testator or by some other person in his presence and by his directions with the intention of revoking the same. ESSENTIAL CLAUSES OF WILLS-
There are certain characteristics which should be included in the instrument of will such as:- • The Name of the Testator: The name of the testator should be mentioned accurately without any error in initials, spelling or grammatical mistake so that it will not affect the instrument of Will. The name of the testator can also be clarified by looking into his birth certificate or any school certificates. • Right to Appoint Legatee: The testator is having absolute right to appoint any person as a legatee or beneficiary of a Will and legatee should execute the Will carefully and in accordance with the law. To Take Effect after Death: A testator who is having power to make the Will during his lifetime, but it will take effect only after his death. A gift made by a person during his lifetime and will take effect during his lifetime, cannot be considered as a Will. • Revocability under the Law: In general a Will made by the testator can be revoke at any time during his lifetime and testator can choose any other person as his legatee. There may be chances where a testator wishes to bring some alterations in the Will then he can make some necessary amendments in the prepared Will which is otherwise called as Codicil.
A third party can not file a civil suit against the testator on the ground of cancellation of the Will. A Will made by the testator may be irrevocable in some cases where an agreement is entered into contrary to the Will, may bind the testator. • Intention of the Testator supreme: The testator of the Will has right to revoke Will at any time which can only be proved by the intention of the testator that whether he is intending to revoke the previous testamentary instruments made by him or he can state in his Will that ‘This is my last Will’ then it can be presumed that all the earlier testamentary instruments has been revoked. The Declaration to be ‘Last Will’: A person as testator has power to make declaration of Will innumerable times but it is always the last will of testator which will prevail. The words “I declare this to be my last will” need not be stated in the instrument of the Will. Once the Will is made by the testator Inserting of words ‘Last and Only will’ at the time of death it can be presumed that all the previous Wills will get revoked and fresh Will has to be effected. Lost Subsequent ‘Will’: Mere loss of the original Will does not operate a revocation but it has to be inferring by the stringent evidence to prove its revocability and a testator must show the genuine reasons for the loss of the Will. Once it is proved that an original will is lost then ‘Subsequent Will’ will be valid. Restrictions or Limitations for making of a will under The Indian Succession Act 1925 * Transfer to person by particular description, which is not in existence at testator’s death. * Transfer to person not in existence at testator’s death subject to prior bequest. Transfer made to create perpetuity. * Transfer to a class some of whom may come under above rules. * Transfer to take effect on failure of prior Transfer. * Effect of direction for accumulation. Registration of ‘Wills’: It is not mandatory for a will to be registered but it is better if a will is registered because it has few advantages. * It can be proved easily. * Its authenticity cannot be questioned. * A certified copy is always available. * When- It can be registered in any registering offices in India at any time during the life time of the Will maker.
The copy of the will can be obtained by the testator at any point during his/her life time and after his/her death that copy can be obtained by others by providing the proof of death of the testator. * Expenses- Will has an advantage that the cost incurred in making of it is negotiable. The estimated amount of making a will is 200-300 Rupees. Any alteration in will whether addition or deletion or rectification can be done through a document called Codicil and this will not even require the stamp duty. Note- A bill can be registered even after the death of the testator which may help the beneficiaries of the will to obtain bequeathed properties without hassles. According to the Section: 18 of the ‘Registration Act, 1908’ the registration of a Will is not compulsory. Once a Will is registered, it is strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after. The process of registration begins when a Will instrument is deposited to the registrar or sub-registrar of jurisdictional area by the testator himself or his authorized agent.
Once the scrutiny of Will instrument is done by the registrar and registrar is satisfied with all the documents then registrar will make the entry in the Register-Book by writing year, month, day and hour of such presentation of the document and will issue a certified copy to the testator. In case if registrar refuses to order Will to be registered then testator himself or his authorized agent can institute a civil suit in a court of law and court will pass decree of registration of Will if court is satisfied with the evidence produced by the plaintiff.
A suit can only be filed within 30 days after the refusal of registration by the registrar. If the testator willing to withdraw the Will after the process of registration then a sufficient reason has to be given to registrar, if satisfied he will order for the registration of Will. Property, which can be, disposed off by Will Any movable or immovable property can be disposed off by a will by its owner. Under Mitakshara Law, a Hindu coparcener could not dispose off his undivided coparcenary property by will, even if other coparceners consented to it.
But section 30 of Hindu Succession Act, 1956 provides that any Hindu may dispose off by will or other testamentary disposition any property, which is capable of being so, disposed of by him in accordance with law. The interest of a male Hindu in a Mitakshara coparcenary property is deemed to be property capable of being disposed off by him. PROBATE OF A WILL- It is the copy of the will which 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 along with copy of last Will and testament of the deceased to the court of competent jurisdiction. The copy of the will and grant of administration of the testator’s 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 and it is the only proper evidence of the executor’s 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. Muslim laws on wills in India
A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property. The Mohammedan Law restricts a Muslim person to bequeath his whole property in a will and allows him to bequeath 1/3rd of his estate by writing will, which will take effect after his death. A will may be in the form of oral or written if the will is in writing need not be signed if signed need not be attested.
Acc to Shia Law if served bequests are made through a will, priority should be given to determination by the order in which they are mentioned a bequest by way of will. A Will Can be made by a person who is of sound mind, major and possessing a absolute title, in favour of a person who is capable of holding property except unborn persons and heirs. The revocation of will is possible only if the subsequent Will is made by the testator. A Muslim person who is allowed to bequeath 1/3rd of his estate, he can exceed its limit on testamentary power of 1/3rd to 1/4th in case where heirs’ gives consent or only heir is husband or wife.
Revocation of a will A Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will. A Will can be revoked by testator of the Will at any point of time which can be classified into two aspects such as:- • Voluntary Revocation: A testator who wishes to revoke his original Will which is made by him on a specified date and time, he can make revocation of the will himself by writing a subsequent Will or codicil duly executed and by destruction of the previous will, means by burning, tearing, destroying or striking out the signature of the original instrument of a Will. Involuntary Revocation: According to the Section: 69 of the Indian Succession Act, 1925 which deals with revocation of will by the testator’s marriage, however this provision does not apply to Hindus. Section 57 of the Indian Succession Act clearly states that a testator’s marriage will not make the Will invalid. Revocation of a will by Muslims The testator may revoke his will at any time either expressly or impliedly. The express revocation may be either oral or in writing.
The will can be revoked impliedly by testator transferring or destroying completely altering the subject matter of the will or by giving the same property to someone else by another will. Codicil Codicil means an instrument made in relation to a will and explaining, altering or adding to its dispositions and shall be deemed to form part of the will. The codicil is generally made to make slight changes in the will, which has already been executed.
A codicil cannot alter a will more than what is necessary to carry out the testator’s intention as evidenced by the will and the codicil. Codicil means an instrument made in relation to a will and explaining, altering or adding to its dispositions and shall be deemed to form part of the will. The codicil is generally made to make slight changes in the will, which has already been executed. A codicil cannot alter a will more than what is necessary to carry out the testator’s intention as evidenced by the will and the codicil.
Who can be a devisee under a will? Any person capable of holding property can be a devisee under a will and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person can be a devisee. Sections 112 to 117 of Indian Succession Act, 1925 put some restrictions on the disposition of property by will in certain cases. Dispositions of property by will in some cases have been declared void.