In India, the preparation and execution of wills are governed by the Indian Succession Act of 1925. While not mandatory, preparing a will is advisable to ensure the smooth distribution of assets after death. This article provides an in-depth analysis of the provisions of the Indian Succession Act, the types of wills, the execution process, and the role of executors.
Generally, the 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 even to Hindus, Sikhs, Buddhists, Jains, or Christians. It will apply to all other communities in its entirety.
The person who makes a will is called a “testator,” and the person who receives the benefits under the will is called “legatees.”
If the properties of the deceased are distributed according to the will prepared by him during his lifetime, it is called “testamentary succession”; while if such distribution of properties is done without the will, it is called “intestate succession.” Both types of succession are governed by the Indian Succession Act, 1925.
Section 2(h) of the Indian Succession Act, 1925, defines the will as:
“A will is the legal declaration of the intentions of the testator with respect to his property which he desires to be carried into effect after his death.”
This will is the legal declaration of the wish or intent of the testator about the disposal of his/her properties and it becomes operative only on his/her death. Actually, it is nothing but the distribution of properties of the testator on his/her death according to his/her wishes. A will clearly demarcates what should go to whom and in what proportion.
The fundamental characteristic of the will is – it can be revoked, altered, or distributed by the testator any number of times at any time during his/her lifetime. In other words, a will can be changed every day.
Section 61 speaks that the will shall be void ab initio if made under coercion or undue influence or in fraud.
There are different kinds of wills that one can prepare:
(1) Unprivileged Wills;
(2) Privileged Wills;
(3) Joint Wills;
(4) Contingent or Conditional Wills;
(5) Mutual Wills;
(6) Parallel Wills;
(7) Living Wills.
Who are competent to make a will?
The following persons are considered competent to make a will for the disposal of their properties:
All persons of sound mind (not being minors). Deaf, dumb, or blind persons, if they are capable of knowing what they are doing. Insane persons. A normal person (without any physical or mental illness), but does not know what he is doing, cannot make a will. A person who is under the influence of intoxication has been considered incompetent to make a will.
Execution of a will
Section 63 lays down the requirements of a valid will. Mandatory prerequisites are as follows:
It must be in writing and bear the signature or mark of the testator. It shall be attested by two or more witnesses each of whom has seen the testator sign or put the mark. Each of the attesting witnesses has to sign the will in the presence of the testator. It is not necessary to be executed on a stamp paper nor does it require to be registered. Though its registration has been made voluntary, it is advisable to do it as when the will is registered, it becomes easier to obtain probate from the Court. Also, it avoids probable disputes on the death of the testator.
To whom bequest can be made.
There are no restrictions whatsoever imposed by any law on choosing the legatees under a will made by the testator. He has an unfettered right to decide not only the legatees but also their shares in his estate.
A competent person can make bequests in favor of any living person, an idiot, lunatic, idol, Charitable Trust, firm, HUF, any institution, corporate body, society, etc.
If there are clear instructions in the will, it is possible to create a new HUF by making a request to a person not as individual property but as HUF property with such individual as its Karta. And a new status of assessment would come up.
Codicil:
As defined under Section 2(b) of the Indian Succession Act, 1925, it means an instrument made in relation to a will and explaining, altering, or adding to its disposition and shall be deemed to form part of the will.
A codicil is nothing else but a supplementary will if the testator wishes to carry out any changes/amendments in the will already made by him. He can execute a codicil instead of rewriting the entire will. This can be made anytime during his lifetime and executed in a similar manner as the will.
Once executed, it becomes part and parcel of the original will and should be tagged with it. It may be carefully noted that all the requirements of a valid will are required to be complied with for the execution of a codicil. Therefore, sometimes it is advised to make a fresh new will.
Executor / Administrator:
The most common question is who will manage the estate of the deceased – either testamentary or intestate. The answer is one who is Executor or Administrator.
In case of testamentary succession, the testator has the option to appoint an Executor under a will. While in case of intestate succession, the Court can appoint an administrator on application of the legal heirs of the deceased.
The “Executor” or the “Administrator” of the will is the legal representative of the deceased, and the entire property vests in him for all purposes. An executor appointed can also be one of the legatees under the will.
Registration of will.
The procedures of registration of the will are governed by the provisions of the Registration Act, 1908. This formality is optional at the will of the testator and is only for the purpose of ensuring the legal execution of the will and its safety.
Even if this procedure is carried out by the testator, it does not confer any additional benefit or sanctity to the will nor does it prevent him from making another will.
Though the will is not legally required to be registered, it is advisable to get it done – particularly when there is a likelihood of any disputes or chances of challenging the validity of the will. Even in order to avoid any chances of its misplacement, the same may also be useful.
Section 40 of the said Act provides the procedures for the registration of the will, while section 41 speaks of the procedures to be followed for its registration as required for any other document.
Conclusion
Preparing a will under the Indian Succession Act of 1925 provides individuals with the opportunity to ensure their assets are distributed according to their wishes. Understanding the legal requirements, types of wills, and execution process is crucial for effective estate planning. While not compulsory, the preparation and execution of a will are advisable to avoid potential conflicts and ensure a smooth transition of assets to beneficiaries.
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