W I L L
( T E S T A M E N T)
What is WILL? The most important word in our life. Somebody says
“ Where there is a will, there is way.
Where there is no will, there is a lawyer”
Object of preparing a WILL is to create an apt awareness amongst general public. What are the advantages of making a WILL and what are the disadvantages of not making a WILL, we will discuss. There are many hurdles and hassles in not making a WILL, at the time of transferring the estate of a deceased person. There may be a dispute between the legal heirs on the death of a person. Therefore one should never underestimate the importance of making a WILL at any time during one’s life time.
WILL makes not only wealth transfer an easy, but also helps in SUCCESSION and TAX PLANNING. It is not difficult at all, its very simple and easy to draft a WILL.
Indian Succession Act, 1925 governs the preparation of WILLs. This Act does not apply in its entirety to all Indians. Most of its provisions do not apply to Muslims and some of them are not applicable to even to Hindus, Buddhists, Sikhs,
Jains, or Christians. It will apply all other communities in its entirety.
The person who makes the WILL is called TESTATOR and he persons who get the benefits under the WILL are called LEGATEES. If the properties of the deceased distributed according to the WILL prepared by him during his life time, it is called TESTAMENTARY SUCCESSION, while if such distribution of properties without WILL, it is called, INTESTATE SUCCESSION. Both the type of successions are governed by the Indian Succession Act 1925.
In our country, if you will advice someone to prepare WILL, his immediate reaction will be Do you mean I will die? No body knows when, who will die, it is advisable to prepare a WILL. A WILL helps you pick and choose your heirs and in what proportion of wealth and assets. It is the belief of some people that after my death all the assets are inherited by wife, which is not correct.
THE TESTATOR( One who draft the WILL)
He is govern by the Law of the place where the Immovable Properties located, and in case of Movable Properties by the Law of Domicile.
( A person’s domicile is that in which he either has or is deemed to have his PARMANENT HOME)
As regards succession of immovable properties whatever may be the domicile or nationality of the person, the succession thereto, the right of disposal of the property by WILL, capacity to make a WILL, all these formalities would be govern by where the property is situated.
As regards movables, all the above formalities would be govern by the law of domicile. Section 19 of the Indian Succession Act, 1925 however states that in absence of proof of domicile elsewhere, the moveable property in India would be governed by the law in India.
LAWS APPLICABLE TO WILL:
There are number of different enactments making corrections/deletions/additions in relation to WILL from 1865 to 1956:
Indian Succession Act 1865: This was applicable ONLY to Anglo Indian and English people; Hindus, Jains, Muslims were excluded.
The Hindu Will Act 1870: This was applicable ONLY to Hindus, Jains, Sikh, Budhist. It provided only rules and regulations regarding WILLs.
The Probate and Administration Act 1881: This Act provided ONLY the manner for getting the probate.
Registration Act 1908: Section 18 of this Act clarified that there is no need to get the WILL registered. Also it made provisions for deposit of WILLs.
Thus registration and deposit of WILLs are not mandatory but are Optional under the provision of this Act.
Indian Succession Act 1925: All provisions enactments relating to WILLs abolished and subject to certain exceptions (Hindu, Jains, Sikh, Budhist, Parsi, Christan ) made applicable to all Indians.
This Act deals with the succession both of intestate and testamentary
Bombay Public Trust Act 1950: If the benefits under the WILL are made available to Religious or Charitable Trust, the copy of the WILL is required to be registered with Charity Commissioner. This Act is applicable to Maharashtra and Gujarat.
The Hindu Succession Act 1956: This Act has come in to operation with effect from 17th June 1956. Under the provisions of this Act, for the first time a male Hindu of HUF has been granted the right to WILL away his undivided share in the family property and the females also have been granted the full ownership of all the properties however acquired by them either inherited or under a WILL or even their Streedhan.(
If NO WILL :
- Hindu Succession Act, 1956 will apply to Hindus, Jains, Budhists and Shikhs
- Indian Succession Act 1925 will apply to Parsis, Christians and Jews.
- In case of Muslims, the succession is governed by their religious inheritance laws, which very across different sects.
- Laws governing the WILLs are different from country to country.
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