Will & Hindu Law
A will or testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution. For the devolution of property not disposed of by will.
Though it has at times been thought that a “will” was historically limited to real property while “testament” applies only to dispositions of personal property (thus giving rise to the popular title of the document as “Last Will and Testament”), the historical records show that the terms have been used interchangeably. Thus, the word “will” validly applies to both personal and real property. A will may also create a testamentary trust that is effective only after the death of the testator.
As per Section 2(h) of Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death Will has been defined in Corpus Juris Secundum as A ‘Will’ is the legal declaration of a man’s intention, which he wills to be performed after his death, or an instrument by which a person makes a disposition of his property to take effect after his death.
A last will and testament is a legal document that communicates a person’s final wishes pertaining to possessions and dependents. A person’s last will and testament outlines what to do with possessions, whether he is leaving them to another person or group or donating them to charity, and what happens to other things for which he is responsible, such as custody of dependents and accounts and interests management.
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. However Mohammedan are not governed by the Indian Succession Act, 1925 and they can dispose their property according to Muslim Law.
Key ingredients of a Will are as follows:
Testator Details – Name, age, address details of the person making the Will
Legal declaration – A Will is a declaration. A Will is by which a living person (called testator) declares his desires or intentions. A Will is never an agreement or contract or settlement. It is for this reason that the beneficiaries of a Will should not be parties to the Will. The declaration must be legal. A declaration that is illegal either by way of the ultimate objective or in some other way will not be considered as a Will.
Intention of testator – A Will is a declaration of intention of the person making the Will. By definition, intention relates to the future and is different from statement of narration of facts as at present. A Will that only narrates the present state of affairs and does not carry a clear exposition of the intention of the testator is not a Will. Similarly, if a Will made by a wife stating what her deceased husband always desired before death is not a Will; since it carries intentions of the testator’s deceased husband and not of the testator.
With respect to his / her property – A Will can only be made with respect to the property that the testator owns or has rights over. The simple rule is that one can only give what one has. There is no way that one can give away something that one does not have.
The details of the properties which the testator wants to give to his beneficiaries under his Will like the description, the registration number, the date of registration and whether it is his self acquired property etc. If it is a movable property, then the details and description of each should be clearly and individually mentioned.
Beneficiary Details – In case of multiple beneficiaries, the details of each beneficiary like name, age, address, relationship of the beneficiary with the Testator.
Desires to be carried into effect after his / her death – The Will must state clearly that the testator desires that it comes into effect after his / her death. A renunciation during one’s lifetime does not amount to a Will. If the document desires to partition property among the testator’s sons while the testator is still living, the document cannot be called a Will.
Guardian for Minors – If the Testator wishes to give his property to any beneficiary who is a minor, then definitely he should appoint a guardian who will take care of the minor’s property till the minor attains majority.
Executor of the Will – The Testator should appoint an Executor to his Will. An Executor is a person who shall implement the Will after the Testator’s death.
Signature and Date – The Will should be clearly dated and signed by the Testator at the place in the document just below the last sentence in the document.
Exclusions – The Testator cannot give any property that is joint family property or ancestral property that is common to many other members too. Such a Will becomes void.
Further there is another principle, which says that the construction that postpones the vesting of legacy in the property disposed should be avoided. The intention of the testator should be decided after construing the Will as a whole and not the clauses in isolation.
In Gnanambal Ammal v. T. Raju Aiyar the Supreme Court held that the cardinal maxim to be observed by the Court in construing a Will is the intention of the testator. This intention is primarily to be gathered from the language of the document, which is to be read as a whole.
The primary duty of the court is to determine the intention of the testator from the Will itself by reading of the Will. The SC in Bhura v Kashi Ram held that a construction which would advance the intention of the testator has be favoured and as far as possible effect is to be given to the testator’s intention unless it is contrary to law. The court should put itself in the armchair of the testator. In Navneet Lal v. Gokul & Ors the SC held that the court should consider the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use words in a particular sense. However it also held that these factors are merely an aid in ascertaining the intention of the testator. The Court cannot speculate what the testator might have intended to write. The Court can only interprete in accordance with the express or implied intention of the testator expressed in the Will. It cannot recreate or make a Will for the testator.
Why you should make a will?
Four reasons why you need a will:
A will makes it much easier for your family or friends to sort everything out when you die – without a will the process can be more time consuming and stressful.
If you don’t write a will, everything you own will be shared out in a standard way defined by the law – which isn’t always the way you might want.
A will can help reduce the amount of Inheritance Tax that might be payable on the value of the property and money you leave behind.
Writing a will is especially important if you have children or other family, who depend on you financially, or if you want to leave something to people outside your immediate family.
Types of wills:
The only persons who can make a privileged Will are the following: (a) Soldier / airman employed in an expedition or engaged in actual warfare; and (b) mariner at sea. Relevant section of Indian Succession Act, 1925 reads as follows.
A privileged Will can be in writing or can be oral. A privileged Will written in his own hand by the Testator need not be signed. A privileged Will signed by the Testator does not need attestation by witnesses. Privileged Will is a special Will made in extraordinary circumstances like war or dangerous expedition. Most importantly, Hindus are not permitted to make privileged Wills since the relevant sections 65 and 66 of Indian Succession Act, 1925 are not listed in Schedule III of the Act. We shall, hence, not devote any attention to this special category of Wills.
Every person who is not entitled to make a privileged Will can only make an unprivileged Will. In other words, Hindus can only make unprivileged Wills. Essential procedural requirements of an unprivileged Will can be summed up as follows:
Must be in writing
Signed by testator in the presence of witnesses
Signed by two or more witnesses in presence of the testator
Relevant section of Indian Succession Act, 1925 reads as follows:
The most essential requirement for a Will as per Indian law is attestation by two or more witnesses. We shall discuss this aspect in more detail in the next chapter.
A person can take any plain paper and write the Will in his / her own hand putting down his / her wishes to paper without any need for assistance from a legal professional. Such a Will in one’s own handwriting is called Holograph Will. If a Holograph Will is duly attested by witnesses, there is strong presumption in favor of genuineness of the Will. So, if one has a clear mind and decent control on language, one should write out the Will in one’s own handwriting, sign it in front of two witnesses and get the signature of the two witnesses. For doing this, one may take help of the Model Wills given in the Annexures to this Guide.
It must be stressed that even when a Will is a Holograph Will, the requirements of signature of the testator and attestation by witnesses must be complied with. Any slip with respect to either the signature or the attestation will make the Will null and void. Assistance of a legal professional is not strictly required for making of a Will. A lawyer can, however, help avoid confusions caused by poor drafting or errors of language / grammar. An experienced and seasoned legal adviser can also help a testator clarify and crystallize his / her thoughts and wishes. A word of caution – there are instances when assisting professionals try to grind their own axe in the Will maliciously. So, it is advised that one must choose a professional who is not only competent and knowledgeable, he / she is also a person of highest level of integrity and ethics. And in case you cannot get such professional, please read this Guide carefully and do the making of Will on your own.
The lawyer or any other professional assisting with drafting of a Will should put his / her name, address and signature at the bottom along with a line describing the role played.
The line could read “Drafted by ………….” or “Document Writer -……….” Or “Scribe -………….”. Often when a Will is challenged, the testimony of the scribe or document writer is crucial for determining the genuineness of the Will and also about the roles played by different persons in getting the Will prepared.
For example, a Will was presented by one of the three sisters to court. Property of the deceased was given only to the sister who had approached the court to the exclusion of the other two sisters. During the proceedings at the court, it was disclosed that the husband of the beneficiary sister had approached the scribe and had got the Will prepared. The Will disclosed no reasons for exclusion of the other two sisters. Role of the husband of the beneficiary sister was held to be suspicious and the Will was not accepted. Noticeably, signature of the drafting lawyer / scribe / document writer does not amount to attestation as a witness.
Formal Wills: In every state, you can make a will by typing out your wishes and signing the document yourself, along with two witnesses. There are very few other requirements to make your will valid – you just need to be of sound mind and (in most states) at least 18 years old. Other than that, no official language or legalese is necessary. Just state your wishes clearly. You can use your formal will to distribute your property, name an executor, name guardians for children, and forgive debts.
Handwritten Wills: About half of the states recognize handwritten wills, also called holographic wills.
A holographic will must be in your own handwriting, and it doesn’t have to be witnessed. Although this might sound easier, holographic wills can cause problems after you die because the court will have to decipher and verify your handwriting. This can cause hassles for your family. Also, if you want to make a will of any significant length or complexity, it will be much easier to make a formal will on a computer, using software, or with a lawyer’s help.
That said, if you are in a pickle and need a will fast, by all means write your wishes down in a handwritten will. In many cases, a handwritten will is better than no will at all. However, if you have the means and opportunity, make a formal typed will – it will result in a more robust, precise, and easily probated document.
Oral Wills: Oral wills are valid in just a few states and under very limited circumstances. They usually require a present of fear of death and they can be used only to distribute personal property. Oral wills are unusual and uncertain. If you are planning to make a will, do not plan to make an oral will on your death bed. Instead, take some time to make a formal will.
Joint and Mutual Wills: A joint will distributes the property of two or more people, usually a married couple. Joint wills determine what will happen to the couple’s property after one spouse dies, and also what will happen to the property after the second spouse dies. though it may seem convenient to a couple to make just one will, joint wills can cause problems for the surviving spouse because it ties up property and restricts what he or she can do with it, forever. For example, if a couple makes a joint will and the husband dies in his forties, the wife may live another 40 or more years but she will still be bound by the terms of the will made earlier in her life. Joint wills are best used (if at all) by couples who have children in common and who want to ensure that property will go to those kids (instead of a subsequent spouse or child). But there are better ways to do this, like using children’s trusts.
Instead of making a joint will, consider making mutual wills (also called reciprocal or mirror wills). Mutual wills are two separate wills that are close mirrors of each other. They allow couples to “leave everything to each other” and any number of other similar wishes, but because each person has his or her own will, he or she is free to change it as needed after the first spouse dies.
Conditional and Contingent Wills: Conditional wills only go into effect when a certain act or condition happens. This means something other than the person who wrote the will’s death. This could be a future event not closely related to writing the will, such as attaining a certain age. In the movie “Brewster’s Millions,” Richard Pryor only inherited after spending millions to learn how to appreciate money. This is an extreme example, but strange conditions have been know to apply. You need a lawyer to draft this type of will.
Statutory Wills: A statutory will is one that contains standard terms provided by state law. These state laws were created to allow people to make their own standard will that will be easily recognized and probated. Statutory forms can normally made without a lawyer by using the state’s fill in the blank forms. A few states have mandatory provisions considered part of the statutory will. In these states, the standard terms are implied, even if they weren’t explicitly written in the will.
If you’re in a pinch or have very simple wishes, a statutory will can work well for you. However, these wills are not very flexible and you may not be able to tailor them to your needs.
Self-Proving Will: A self-proving will, (or a self-proving affidavit attached to a will), must be notarized, and certifies that the witnesses and testator properly signed the will. This type of will makes it easy for the court to accept the document as the true will of the person who has died, serving as testimony, and avoids the delay and cost of locating witnesses at the time of probate.
Advance Medical Directives (Living Will): Unlike other types of wills, a living will does not distribute property after the death of the testator. Instead, it gives instructions on what type of medical treatment you wish to receive if you become too ill to communicate. For example, you might state that if you become terminally ill and unconscious, you don’t want to be hooked up to a feeding tube even if you would die without it. The formal requirements for a living will are more flexible than for a testamentary will, but it should be clear and detailed.
Advance Medical Directives (AMD) is a set of instructions that are given by a person about the level of permissions that he / she is willing to give to doctors about his body. AMD has also been called as Living Will though the Honourable Supreme Court prefers the term Advance Medical Directives. AMD, even though called by some as Living Will, are not a part of a person’s Will. A Will is to dispose of one’s movable and immovable properties after one’s death, while AMD operates only during one’s life and has no relevance after death.
AMD relates to permissions that one grants or refuses to grant with regards to one’s body when one is moving towards death. Details about AMD are being included in this Guide only for the sake of completeness even though AMD has nothing to do with a person’s Will. The following extracts from a decision (quoted below) of the Honorable Supreme Court explain the concept of AMD. It has often been argued that one’s right to life includes one’s right to die or at least to die with dignity. Debate about right of life and death becomes important when a person is going through terminal illness, extreme pain and has no hope of survival. At times like these, death may seem like a boon. Modern medicine may not be able to cure, but can often only prolong the ordeal of pain and vegetative existence. Under such circumstances, many may choose a painless and quick death over medically supported expensive life support systems. The problem is that the person going through the ordeal is not in a position to take the decision or convey the decision. Hence, there is need for Advance Medical Directives which are written by one when one is in good health and are detailed instructions to doctors in case of such terminal illness.
India does not have legislation for AMD or any type of euthanasia. In the absence of any legislation, it has fallen upon the Honourable Supreme Court to lay down the law related to euthanasia and also AMD. Recent judgment (9 March 2018) in the matter of Common Cause versus Union of India is a landmark judgment that lays down the guidelines in this field.
Who can execute AMD & How?
Conditions for eligibility to execute AMD are identical to execution of a Will for testamentary succession of property. The following key points may be noted:
1. Person must be adult
2. Person to be of sound and healthy state of mind in a position to communicate, relate and comprehend the purpose of the document being executed
3. Voluntarily executed without any coercion, inducement or compulsion
4. AMD must be in writing
5. AMD must lay down in clear terms (a) when medical treatment may be withdrawn and (b) when specific medical treatment shall not be given.
6. Person executing the AMD must state clearly that the withdrawal / refusal of medical treatment will lead to the stoppage of processes that have the effect of delaying death.
7. Person executing the AMD should understand that the purpose of withdrawal / refusal of medical treatment shall only be to spare him the agony of pain, anguish, suffering and state of indignity during the process of moving towards death which seems certain and imminent.
It must be emphasized here that AMD as a legally executed document can only be used for the purpose mentioned above. Honourable Supreme Court has been extremely sensitive that the provisions must not be misused. Hence, they have provided many safeguards, which we shall discuss as move further.
Contents of AMD
Drafting of an AMD can be tricky considering the fact that Indian legal professionals, generally speaking, do not have experience with such documents. In the absence of any commonly accepted draft of AMD, we put forth a draft which may be suitable for the purpose. Please refer to Annexure D for a Sample AMD.
Notably, like a Will, an AMD can be revoked or modified any time during the life of the person executing the AMD.
In case of a Will, the person executing the Will is called a testator and the person who has the responsibility of implementing the wishes of the testator is called “Executor”. In case of an AMD, the person executing the AMD has been called the Executor. In case of a Will, it is optional to nominate an executor, but in an AMD it is compulsory to appoint a guardian or close relative who will be asked to either give his / he consent to refuse or withdraw medical treatment when the need so arises. As in a Will, an AMD must be clear, unambiguous and state the wishes of the person executing the AMD in specific terms. General, broad-meaning statements should be avoided. AMD should read like a set of instructions and not like a philosophy book.
Procedural requirements for executing an AMD have been made more onerous than applicable to a Will. In case of a Will, only two attesting witnesses are required and there is no involvement of any lawyer or notary or magistrate. In case of an AMD, in addition to two attesting witnesses countersignature by a Judicial Magistrate of First Class (JMFC) is compulsory.
There are no requirements about handing over copies of Will to any family member or any other person. In case of AMD, copies have to be given to each of the following:
Fortunately, there are no requirements of stamp duty or fees to be paid to the concerned officers mentioned above. Of course, we never know for how long this good fortune will last. Some overzealous government officials may soon see this as an opportunity to collect some form of duty or taxes.
Revocation / Modification of AMD
Procedure for revoking or modifying an AMD is the same as the one mentioned for executing an AMD. So, one will have to take two witnesses and go before a JMFC to either revoke or amend an AMD executed in the past.
Absence of AMD
Looking at the complications of executing AMD, one is tempted to ask – what happens if one has not executed an AMD and faces the situation of being terminally ill with no hope
of survival. Well, there is not much difference. The doctors are obliged to follow the same procedure as in case of a patient with an AMD and take a decision with approval from immediate family members, hospital medical board, district collector medical board and also the JMFC.
For the sake of brevity, we are not reproducing here the procedure mentioned for cases without AMD since it is similar to the cases under AMD.
Active Euthanasia vs. Passive Euthanasia
It is important to note that AMD can only cover passive euthanasia and cannot be a justification for active euthanasia. The following extract from the judgment of Honourable Supreme Court makes it amply clear.
In simple terms, it can be said that under no circumstances a doctor is allowed to give a lethal injection to a patient who is crying with pain and pleads for mercy death to the doctor. But, if the patient is lying in a permanent vegetative state with no hope of living a normal life again, the doctor after following the procedure prescribed by the Honourable Supreme Court may remove the tubes that sustain life in the patient.
Euthanasia and Economic Considerations
Healthcare in India is expensive, as it is in almost every part of the world. The difference in India is that the burden of healthcare is almost completely on the individual and his / her family. Publicly funded medical facilities are either non-existent or are of extremely poor quality. Medical insurance is not very widespread and is generally not sufficient to take care of prolonged sustaining of life of a terminally ill patient. In such a situation, decision to withdraw life-sustaining medical systems is often an economic one. A family that delays such a decision may find itself pauperized. Doctors and hospitals are biased advisers who are seen as blood-suckers instead of performers of a humane function. Justice Dr. D.Y. Chandrachud has in his separate judgment in the above-referred case has pointed to this harsh reality of Indian society without offering any solution to the problem.
Justice Chandrachud has rightly observed that Indian families often resort to active / passive euthanasia as “an instrument of cost containment”. This is done without following any judicial or official procedures. Private hospitals want large sums of money to be deposited at regular intervals to continue with supporting life of the terminally ill patient.
As soon as the family indicates inability to pay further, the life-support systems are removed and the patient is discharged with instructions to the family to take the patient home or to some other hospital. The patient dies either on the way home or in the next few days at home.
Any family that goes through this has to face an extremely painful dilemma. On the one hand, there are emotional bonds with the patient and on the other hand there is long-term financial security of the family. It just does not make any sense for the family to sell off all properties and become a pauper trying to extend a family member’s vegetative life by a few weeks or months. In practical terms, an AMD is likely to help the family members resolve the painful dilemma and ease the burden of taking an emotionally tearing decision. Also from a Hindu perspective, a whole is always greater than the part. Sacrificing oneself for the welfare of the family is a fundamental duty for a Hindu.
Executing an AMD to issue directions to one’s family members regarding the level of interventions and life-extension-treatments is, hence, for a Hindu an act to ensure that his / her family continues to remain prosperous even after his soul has left the present body.
AMD in other countries
Most countries have laws regarding Advance Medical Directives. Even though one may be domiciled in India, if one is resident of a particular country one will be governed by laws of that country in matters related to life, medical treatment and death. It is hence, advised that all Hindus living outside India should check the local laws and comply with the same for executing an AMD even if they are Indian passport holders and declare their domicile to be Indian for the purpose of succession related matters.
Unsolemn Will: Where Will in which the executor is unnamed.
Testamentary Trust Wills: A testamentary trust will is a will that puts at least some of your property into a trust. A trust distributes your assets to a beneficiary but is administered by a third person who controls when and how the property is distributed to the trust beneficiary. You might establish a spendthrift trust, for example, for the benefit of a financially irresponsible beneficiary. The trust administrator would distribute the trust assets gradually instead of presenting them to the beneficiary in lump sum. Although the estate executor and the trust administrator may be the same person, they do not have to be. The format of a testamentary trust will can be similar to that of a simple will.
Notarial Will: Will in public form and prepared by a civil-law notary (civil-law jurisdictions and Louisiana, United States).
Who can make will?
Every person who is competent to contract may make a will but he must be major, sound mind and willing to write a Will. Any person who is the sole owner of a self-acquired property can bequeath by way of will. A person of unsound mind can also make a will but only in lucid intervals. A Will cannot be made by some persons i.e. minors, insolvent, persons disqualified under any law by the court. A Will executed by a minor is void and inoperative though a testamentary guardian can be appointed for the minor to dispose off the property. A Will can be made by the deaf and dumb person by showing consent through writing or gestures in sign language. Nothing prevents a prisoner or alien in India from drawing a Will.
For whom the will can be made?
Any person capable of holding property can be a legatee under a will and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person can be a legatee. 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. If the minor person has been named as legatee by a testator then a guardian should be appointed by the testator himself to manage the bequeathed property.
What properties covered by Wills
There can be no doubt that a person can only make a Will only about a property that is his / hers. The fundamental rule is that one can only pass on what one has. In case the testator’s rights on a property are non-existent, a Will about the property made by the testator will be null and void.
It should be noted that Indian laws do not recognize spousal rights on property. So, a husband has no right to make a Will about the property of his wife and vice versa. Even
when the property is jointly owned and the husband pays entirely for the property, the husband cannot make a Will about the share of his wife in the jointly owned property.
Properties in Different Countries
The key issue that Hindus living outside India face is about properties outside India. Let us also consider the hypothetical case of a person, say Ramnath, who has spent three
decades living in the UK, has acquired citizenship of the UK, and has properties both in India and in UK. Ramnath has returned to India for spending his last few years. Can he
make a single Will as per Indian law for his properties, both, in India and UK?
Section 5 of Indian Succession Act, 1925 reads as follows:
Under the above provision of law which is confirmed by various Supreme Court judgments, as far as immovable properties are concerned, all matters relating to capacity
to make Will, revocation of Will, power of disposition and all such related matters are governed by the lex situs or in other words, the law of the land where the property is situated.
Domicile and Movable Properties
Before deciding the issue related to movable properties, it is important to understand the concept of domicile. Broadly speaking it can be said that a person’s domicile is where a person’s heart is. A non-resident India may be a citizen of any country but may well remain domiciled in India. The following Kerala High Court case related to a doctor who migrated to UK from Kerala, became a citizen of UK but remained an Indian at heart is a classic one – [Sankaran Govindan vs. Lakshmi Bharathi and Ors. MANU/KE/0075/1964 dated 20th December 1963].
The key rule is that a person has the domicile that he / she had at the time of his / her birth unless there is clear action on the part of the person to change his / her domicile. For every non-resident Indian born in India who has migrated to a foreign land, the presumption will be that he / she has domicile in India unless he / she does something to indicate that he / she has changed domicile from India and has chosen the country of residence as his / her permanent home.
From the viewpoint of making a Will, the key point to be noted here is that Hindus born in India even after they have lived abroad for decades and have surrendered Indian passports long ago will be considered to have domicile in India unless they declare otherwise. So, Hindus living abroad face two options for making Will for movable properties (including cash, shares, bank deposits, ornaments, vehicles, etc.):
Make a Will as per Indian law related to Wills in respect of all movable properties irrespective of the location of the movable properties; OR
Make a Will as per the law of the foreign land of residence in respect of all movable properties irrespective of the location of the movable properties. The Will made as per the foreign law must affirm and declare that the testator has chosen his / her country of residence as his / her permanent home and has thus change his / her domicile from India (the country of birth) to the chosen country. In essence, deciding domicile is critical for preparing a Will related to movable properties.
For all Hindus born in India, the presumption is that their domicile remains India. So, they can make a Will as per Indian law for all their movable properties located across the globe. However, if a non-resident Hindu wishes to make a Will for his / her movable properties in accordance with the laws of a foreign country where he / she has been residing, he / she must make a clear declaration that he / she has changed his / her domicile.
What can be bequeath in a will?
Any movable or immovable property can be disposed off by a will by its owner, that property must be a self acquired property of that person and it should not be an ancestral property of the testator. According to 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.
Practices In Making A Will –
Keep your Will simple.
In general, the order of preference to distribute asset to legatees and their alternates is :
(5) Other Relatives
(6) Friends. Many people prefer giving something to charity too.
Preferably don’t give a asset to more than one person even if you specify their shares, since that can complicate distribution.
You can describe more specifically some assets which don’t change often, such as real estate, or which may be confused with others.
Don’t describe more specifically some assets that change often, such as “shares of X company” or “Y Mutual Fund”.
Always select alternates to replace legatees. This is because death can come at any time and it’s possible that a legatee has died before or along with you. You may therefore not have a chance to change your Will.
Certain persons are required to implement your Will after your death, such as Executors, Guardians, Witnesses etc. These people should preferably be younger than you, since their work starts after your death.
After making your Will, if there is any addition to the family or a key legatee or Executor or Guardian or Witness has expired, you should change your Will.
Any legatee (and an Executor, if you are a Christian or a Parsi) should not be made a Witness.
A Will should be signed by the Testator in the presence of atleast two Witnesses who have to attest the same. The full names and addresss of the Witnesses should be clearly indicated in the Will. It would be better if one of the Witnesses is a medical practitioner, but this is not essential. The practitioner should certify that the Testator is of sound mind (especially if the Testator is of an advanced age) and he or she should also note his or her registration number and degree (educational qualification). A Witness should not be a beneficiary of the Will. A Witness should also not be an Executor of the Will.
Keep the Will confidential. Nobody needs to read your Will, including Witnesses. They only witness your signature.
Intestate Succession versus Testamentary Succession
Intestate succession is the situation that arises when a person dies without making a Will. For Hindus, provisions of The Hindu Succession Act, 1956 (Act No. 30 of 1956) apply in case of intestate succession. The general rule in case of intestate succession is that descendants of the deceased person inherit the property of the deceased depending on the closeness of their relationship with the deceased. Under The Hindu Succession Act, male and female relatives are treated at par. In other words, son and daughter are equals.
Testamentary succession is division of property after a person’s death as per his wishes as contained in the Will prepared by him / her during his / her lifetime. The testator while preparing the Will is not constrained by the provisions of The Hindu Succession Act. So, he / she may decide to give all or some or none of his / her properties to any close relative(s). A son or daughter cannot claim any rights on the property / properties if the Will does not grant them any rights.
Will can be Registered?
In India, registration of documents is covered by Registration Act, 1908. Section 18 of Registration Act provides a list of documents for which registration is optional. Wills are covered under (e) of the said section 18. Relevant extract reads as follows:
Registration of Wills is not compulsory and depends on the choice of the testator. Typically, the testator will have to visit the office of the sub-registrar of the area for registration of his / her Will. The personal appearance of the testator before a government official with the original Will adds to the reliability and trustworthiness of the Will. A registered Will provides strong legal evidence against challenges about the mental capacity of the testator to make a Will (whether due to illness or due to influence of alcohol or medication etc.). It is presumed that there is little chance that a person in state of mental incapacity will have the ability to first make a Will and then go through the trouble of registering it.
Registration reduces the chances that the Will may be challenged as being a forgery. However, other challenges to a Will as being signed under undue influence etc. are still open. The other advantage of registration is that the Will is in safekeeping at the office of the Registrar. The Will may only be withdrawn from the Registrar by the testator or his agent during his lifetime. On the testator’s death, the Registrar may permit an applicant to take a copy of the Will. However, the original Will is still kept in the deposit with the Registrar. This ensures that the Will is not tampered with subsequent to the testator’s death.
In case of a registered Will, all subsequent alterations or modifications (Codicils) should also be registered. Any non-registered alterations or modifications or explanations or deletions are not accepted by courts.
However, the testator may make a fresh Will revoking the registered Will and declaring the provisions of the fresh Will as his final desires. Even if the fresh Will is unregistered, (if it is of a date later than the registered Will), the fresh Will shall prevail over the registered Will.
Though the registration of a Will is not compulsory, it can be registered with the sub-registrar. If, at any time, the testator wishes to withdraw the Will, he can do so. A Will also can be sealed and kept in safe custody.
On the death of the testator, an executor of the Will or a heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will.
If there are no objections, the court will grant probate. A probate is a copy of a Will, certified by the court, and is conclusive evidence that the Will is genuine.
In essence, registration does strengthen the Will in some respects even though it does not make it cast in stone. Registration is advised if there is a possibility that the Will be challenged by a natural heir (who is denied in the Will what he would have inherited if the testator had died intestate). Registration is also advised if one or more of the beneficiaries are likely to be dissatisfied with the Will.
Most importantly, it should be remembered that the Registrar or sub-registrar does not attest the Will even though he / she may sign the Will in the presence of the testator. If the Will suffers from any defects or lacunae due to wrong or incomplete or absence of attestation, registration will not make the Will valid in any way.
A Testator Can Change Will
A testator can change his Will, at any time, in any manner he deems fit. Every person of sound mind, and not a minor, can make a Will. If a person is of unsound mind at the time of making a Will, the Will is not enforceable.
A Will, obtained by force, coercion or undue influence , is a void Will as it takes away the free agency of the person. A Will, made under influence of intoxication or in such a state of body or mind, sufficient to take away free agency of the testator, is void.
A Will can be made at any time in the life of a person. There is no restriction on how many times a Will can be made by a testator. However, only the last Will made before his death is enforceable. A Will has to be executed by the testator, by signing or affixing his thumb impression on it. It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will.
Place of Making the Will
Place of making a Will is of no importance. Indian courts give importance to the intentions of the testator. The following extract of section 87 of Indian Succession Act, 1925 lays down the general principle followed by Indian courts.
A Hindu living in California, USA need not come to India to make a Will as per Indian laws. He / she can make a valid Will at his / her home in California. The only care that he / she ought to take is about movable and immovable properties as discussed above. A Hindu living in any part of the world but having Indian domicile may execute a Will at any place in the world under the laws of India for bequeathing his / her immovable properties in India and movable properties in every part of the globe. It may also be pointed out that the witnesses attesting a Will under Indian laws need not be Indian citizens or Indian residents or Hindus.
CODICIL TO THE WILL
If a testator intends to make a few changes to the Will, without changing the entire Will, he can do so by making a codicil to the Will. The codicil can be executed in a similar way as the Will. One must note that a Will or codicil is not unalterable or irrevocable. They can be altered or revoked at any time. In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court. If no objection is received, the probate will be granted. It is only after this that the Will comes into effect.
Probate And Letters Of Administration Of Will
What is meant by Probate of a Will?
According to Section 2 of the Indian Succession Act, 1925, Probate means “the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator”. It is nothing but a decree passed by a competent court declaring the legality/correctness and genuineness of the Will of the deceased.
Is it necessary to Probate a Will: Under Section 219 of the Indian Succession Act, 1925, if the deceased has died intestate and was not a person belonging to any of the classes referred to in Section 218 (i.e, Hindu, Mohammedan, Buddhist, Sikh or Jain or an exempted person), those who are connected with him either by marriage or by consanguinity are entitled to obtain Letters of Administration of his estate and effects in the order and according to the rules framed in this section. Under Section 212(2) of the Indian Succession Act, 1925, Hindus, Muslims, etc. are not bound to apply for letters of administration (Probate). It is optional and not mandatory for these persons to seek probate of the Will.
What are the advantages of a Probated Will: Probate of a Will when granted, establishes the genuineness of Will from the death of the testator and renders valid all intermediate acts of the Executor as such. What will be the legal consequences if the Will is not Probated: If the Will which is required to be probated, under the Act, if not probated, has no legal sanctity and binding force.
What is the time frame within which a Will is to be probated?
There is no limitation for grant of letters of administration or probate. Where the estate is in the possession of administrator there is no question of the Probate Court delivering the possession to him but the probate will be decisive only with regard to the genuineness of the Will propounded and the right of the executor to represent the estate.
Which is the appropriate Court to file the suit for the Probate?
Principal Court of Original Jurisdiction as per the local City Civil Court Act. The High Court also enjoys concurrent jurisdiction to grant probate of the Will.
Who can apply for the Probate of a Will?
According to Section 222 of the Indian Succession Act, 1926, Probate shall be granted only to an Executor appointed by the Will. The appointment may be expressed or by necessary implication. In the absence of the Executor being named in the Will, the Legatees or the Beneficiaries under the Will could also seek probate of the Will.
What are the documents to be submitted for obtaining the Probate?
Following must be submitted:-
Original Will of the deceased.
Title Deeds pertaining to the immovable property mentioned in the Will, if any.
Documents pertaining to the movables, mentioned in the Will, if any.
What is the fee payable for a Probate?
Andhra Pradesh Court Fees and Suits Valuation Act, 1956, has several parameters for levy of court fees on probate application and the same is exhaustive.
What is the procedure for obtaining a Probate?
A petition has to be filed before the Principal Court of Original Jurisdiction or before the Hon’ble High Court under Section 374 of the Indian Succession Act. The Court in question will issue the court notices at the initial stage and a paper publication will be caused besides a Gazette publication as well. In case such a petition is contested, it will be converted into a regular suit and upon contest the same will be disposed of, by delivering the judgment and decree, in accordance with law.
Drafting a Will
There is no particular format for a Will. The most important requirement for a Will is that the intentions of the testator should be known clearly and unambiguously from a Will.
Section 74 of Indian Succession Act states the same in clear terms. Relevant section reads as follows:
A Will should be written in a manner that is easy to read and understand. As far as possible, the Will should avoid legalese and be worded in simple language. It should be specific and clear with respect to the intentions of the testator.
It is advisable to prepare and execute the Will in the language that the testator is most comfortable with. If a testator is comfortable in Hindi and has no knowledge of English, a Will prepared in English will suffer from an obvious defect. In such a case, it will be the responsibility of the propounder to prove in a court that there were valid reasons for preparing the Will in English and that the testator had understood the contents of the Will completely. Challenges like these can be avoided if the language of the Will is the usual language of the testator.
Any Will is concerned with the following: Testator, properties and beneficiaries. It is absolutely necessary that there be no confusion about either of the three in any way.
Descriptions of the three ought to take the following care:
Testator description – There should be no doubts whatsoever about the identity of the person who has executed the Will. The testator should write his full name, nicknames (if any), father’s name, approximate age and address. It is also advisable to put an identifying number such as PAN or AADHAAR or passport number. Since the law related to Will varies based on the testator’s religion, it is also preferable to mention one’s religion. If the testator is a Hindu resident outside India, it is worthwhile for him to state what his domicile is. For example, one of the following two sentences may be used:
I was born in India and moved to ……….. at the age of about ……………. I have acquired the citizenship of ……………. and have built a permanent home in the said country. As soon as I acquired the citizenship of the said country, I changed my domicile to that of the said country.
I was born in India and moved to ……….. at the age of about ……………. I have acquired the citizenship of ……………. Notwithstanding the fact of my surrender of citizenship of India, I still consider India to be my home and my domicile. I have Overseas Citizen of India card and I hope that sometime before my death I shall be able to move back to India.
Description of Properties – Each immovable property that is the subject of the Will must be described in as clear terms as possible. Vague descriptions like “that ancestral house in Varanasi” can make it very difficult for the beneficiaries to claim the property. If the reference is to movable properties like bank accounts and shares, one may either describe them in general terms like “all bank accounts and equity shares in my name” or may describe them in specific terms. If some of the movable properties go to one beneficiary and some to another, the specific descriptions should be such that a court does not have any confusion.
Often the problem is that properties change from the time of making the Will and death of the testator. To take care of such a situation, description of properties must be suitably drafted. For example, it may be added that “any and all properties acquired by me after the date of this Will shall go to A”.
In case the testator has partial rights on a property, he / she may bequeath only the partial rights. In such cases, the Will should clearly state the partial rights that the testator has. For example, if a property is jointly owned by the testator, he / she may bequeath his/ her share in the jointly owned property. Similarly, if the testator has tenancy or leasehold rights in a property, he / she may bequeath the tenancy or leasehold rights.
Description of Beneficiaries – Each beneficiary / legatee should be identified by the full name as well as by relation (if any) to the testator. Though it is not customary, it helps if more details about the beneficiary such as approximate age, address, father’s name and some identification number is also mentioned. Confusions arise in poorly drafted Will from statements like “The house should go to my son, Bittu”. In this case, the testator, an elderly lady, used to refer to her son by the nickname of Bittu. No one else referred to the son, a respected doctor of the town, by that nickname. It may be difficult for the son to claim the house since he will have no documents to show that he is indeed the Bittu that the elderly lady referred to in her Will.
Some points that may be kept in mind while drafting a Will are summed up as follows:
Strictly legally speaking, date is not an essential requirement in a Will. An undated Will shall not be invalid. However, it is not only customary to date a Will, it is also an important piece of information as and when the Will has to be confirmed by a court. A date is the reference point for a court to determine the mental capacity of the testator. Other documents and witnesses may be brought before the court to prove that the testator was in good health on the date specified in the Will. In case of an undated Will, this becomes difficult. Hence, we recommend that a Will ought to always be dated. The date may appear either at the top or at the bottom, but not at both places. Putting date at more than one place opens up the possibility of two different dates on the same document leading to unnecessary questioning when presented before a court.
Numbering of paragraphs
This is again not a legal requirement. However, it is recommended to make the Will clear and avoid confusions. Initial descriptive paragraphs are not numbered. The paragraphs describing the bequest are generally numbered.
Revocation of previous Wills
If the testator has made any Will(s) in the past, the same should be mentioned in the Will. It is advisable that all previous Wills are revoked and the Will being made is a comprehensive document. A statement declaring that all previous Wills are revoked is sufficient to revoke previous Wills.
Denial of benefits to natural heirs
If a Will denies benefits of inheritance to one or more natural heirs, it is to be expected that the said natural heirs will challenge the Will. One must anticipate this and take all precautions. Two important recommendations in this regard are as follows:
Ensure that any beneficiary and his / her spouse are not involved with preparation of the Will or attesting it.
A short description of reason(s) for denial of benefits to the natural heirs may be given in the Will. For example, a testator may write – “I have two sons and a daughter. The sons have not taken any care of me in the past more than ten years. The sons have not even bothered to visit me once during the past ten years.
Hence, I do not wish to give anything from my properties and assets to my sons”. Two cases deserve attention in this regard. In the first case before Honourable Karnataka High Court, the propounder played an active role in the preparation of Will and there was no cogent reason for exclusion of two sisters.
In the second case before Honourable Delhi High Court, the testator gave clear cogent reasons for exclusion of his daughters and also there was no involvement of the propounder in preparation of the Will. In the latter case the Will was accepted, while in the former case the Will was rejected.
Can All wills can be revoked?
All Wills can be revoked, either impliedly or expressly, either by conduct or by a specific document. By conduct, the Will can be presented to be revoked by the testator. For example , a testator may make bequest of property in his Will to a person, but he may dispose of the said property even during his life time. This is called implied revocation. Suppose, the testator makes a bequest of a vacant land in his Will, but subsequently the testator himself constructs a dwelling house therein, in such circumstance, the Will can be deemed to have been expressly revoked by the testator. It has been experienced that when there is a Will, painful litigation in the family of the testator is prevented. Only in a very few cases, litigation crops up questioning the genuineness of the Will.
Restrictions On A Will
Transfer to unborn persons is invalid.
Where a bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who answers that description, the bequest is void. S.113 of Indian Succession Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has to be created in another person and the bequest must comprise of whole of the remaining interest of the testator. In Sopher v. Administrator-General of Bengal a grandfather made the bequest to his grandson who was yet to be born, by creating a prior interest in his son and daughter in law. The Court upheld the transfer to an unborn person and the Court held that since the vested interest was transferred when the grandsons were born and only the enjoyment of possession was postponed till they achieved the age of twenty one the transfer was held to be valid.
In Girish Dutt v. Datadin , the Will stated that the property was to be transferred to a female descendant (who was unborn) only if the person did not have any male descendant. The Court held that since the transfer of property was dependent on the condition that there has to be no male descendant, the transfer of interest was limited and not absolute and thereby the transfer was void. For a transfer to a unborn person to be held valid, absolute interest needs to be transferred and it cannot be a limited interest.
Transfer made to create perpetuity: S.114 of the Indian Succession Act, 1925 provides that no bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator’s death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.
The rule against perpetuity provides that the property cannot be tied for an indefinite period. The property cannot be transferred in an unending way. The rule is based on the considerations of public policy since property cannot be made inalienable unless it is in the interest of the community. The rule against perpetuity invalidates any bequest which delays vesting beyond the life or lives-in-being and the minority of the donee who must be living at the close of the last life. Hence property can be transferred to a unborn person who has to be born at the expiration of the interest created and the maximum permissible remoteness is of 18 years i.e the age of minority in India.
In Stanely v. Leigh it was laid down that for the rule of perpetuity to be not applicable there has to be 1)a transfer 2)an interest in an unborn person must be created 3)takes effect after the life time of one or more persons and during his minority 4)unborn person should be in existence at the expiration of the interest.
Transfer to a class some of whom may come under above rules: S.115 of ISA provides that if a bequest is made to a class of persons with regard to some of whom it is inoperative by reasons of the fact that the person is not in existence at the testator’s death or to create perpetuity, such bequest shall be void in regard to those persons only and not in regard to the whole class.
A number of persons are said to be a class when they can be designated by some general name as grandchildren, children and nephews. In Pearks v. Mosesley defined gift to a class as a gift to all those who shall come within a certain category or description defined by a general or collective formula and who if they take at all are to take one divisible subject in certain proportionate shares.
Transfer to take effect on failure of prior Transfer: S.116 of ISA provides that where by reason of any of the rules contained in sections 113 and 114 and bequest in favour of a person of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same Will and intended to take effect after or upon failure of such prior bequest is also void.
The principle of this section is based upon the presumed intention of the testator that the person entitled at the subsequent limitation is not intended to be benefited except at the exhaustion of the prior limitation. In Girish Dutt case one S gave property to B for life and after her death if there be any male descendants whether born as son or daughter to them absolutely. In the absence of any issue, whether male or female, living at the time of B’s death, the gifted property was to go to C. it was held that the gift in favour of C was dependent upon the failure of the prior interest in the favour of daughter and hence the gift in favour of C was also invalid. However alternative bequests are valid.
TRANSFER THE PROPERTIES THROUGH WILL – MUSLIM LAW:
A Muslim can transfer his entire property through gift but, he has no right to make a will of his whole property. Under Muslim law, the testamentary right i.e. the right to transfer the properties through will, is restricted in two ways: Firstly, there is a restriction upon the quantity of property bequeathed. Secondly, in respect of the person (legatee) to whom the property is given.
When a person dies, first of all his funeral expenses and the debts, if any, are satisfied out of the property left by him. The property, which remains after payment of funeral expenses and debts incurred by a deceased person, is called the bequeathable property if the deceased had made any will. Under other systems of personal law e.g. under Hindu law or Christian law etc. a legator can make a will of the entire property.
Except under Muslim law, a testator has right to make a will of his total assets and there is no restriction either in respect of the quantity of property or in respect of the legatee. But, the right of a Muslim testator to dispose off his properties through will is restricted to one-third of his total assets. That is to say, where the testator is a Muslim, he is authorised to make will only of one-third of the bequeathable property i.e. one-third of what remains after payment of his funeral expenses and debts, if any.
General Procedure To Make A Will
A ‘Will’ should be prepared with utmost care and must contain several parts to make a complete Will though there is no defined format for making a Will but a general procedure should be adopted while writing a Will by the testator which includes:
Declaration In The Beginning: In the first paragraph, person who is making a Will, has to declare that he is making this Will in his full senses and free from any kind of pressure and undue influence and he has to clearly mention his full name, address, age, etc at the time of writing the Will so that it confirms that a person really wishes to write a Will.
Details of Property and Documents: The next step is to provide list of items and their current values, like house, land, bank fixed deposits, postal investments, mutual funds, share certificates owned by testator. He must also state the place where he has kept all the documents if the will documents are under safe custody of the bank then testator has to write details about the releasing of the Will from the bank. Here it is the most important duty of the testator to communicate the above matter to the executor of the Will or any other family members, which will make the Will valid after testator death.
Details of ownership By The Testator: A testator while making a original Will should specifically mention that who should own his entire property or assets so that it will not affect the interest of the successors after his death. If testator wishes the name of the minor as beneficiary then a custodian of the property should be appointed to manage the property.
Attestation of the ‘Will’ : At the end, once the testator complete writing his Will, he must sign the will very carefully in presence of at least two independent witnesses, who have to sign after his signature, certifying that the testator has signed the Will in their presence. The date and place also must be indicated clearly at the bottom of the Will. It is not necessary that a person should sign all the pages of the Will instrument but he must sign to avoid any legal disturbances.
Execution of A ‘Will’: On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court will grant probate. A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court. Thereafter, if no objection is received, the probate will be granted and It is only after that Will comes into effect.
Can a registered will, be challenged in a court of law?
Grounds For Challenging A Will, Registered Or Unregistered
A will irrespective of its registration can be challenged on the following grounds,
A will containing any element of fraud, coercion or undue influence can be challenged.
A will or any part of the will, the making of which has been caused by fraud, coercion, undue influence is bad in the eyes of the law. It is well-settled law that once the execution of a will is proved, the burden to prove that it was fabricated or manufactured or was obtained by committing fraud, coercion or undue influence is upon the shoulder of objector of such will. Fraud can be said to be a willful act on the part of anyone, where another is sought to be deprived of illegal means of what he is entitled to.
S.61 of ISA provides that a Will, or any part of Will made, which has been caused by fraud or coercion, basically not by free will, will be void and the Will would be set aside.
Fraud: S.17 of the Indian Contract Act provides for fraud. Actual fraud can be committed through
2) concealment . Fraud in all cases implies a willful act on the part of anyone whereby, another is sought to be deprived by illegal or inequitable means, of which he is entitled to
Coercion: S.15 of Indian Contract Act defines coercion. Any force or fear of death, or of bodily hurt or imprisonment would invalidate a Will. In Ammi Razu v. Seshamma , a man threatening to commit suicide induced his wife and son to give him a release deed. It was held that even though suicide was not punishable by the Indian Penal Code yet it was forbidden by law and hence the release deed must be set aside as having been obtained by coercion.
Undue influence: Undue influence u/s.16 of Indian Contract Act is said to be exercised when the relations existing between the two parties are such that one of the parties is in the position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. However neither fiduciary relationship nor a dominating position would raise a presumption of undue influence in case of Wills as all influences are not unlawful. Persuasion on the basis of affection or ties is lawful. The influence of a person in fiduciary relationship would be lawful so long as the testator understands what he is doing. Thus it can be said that a testator maybe led but cannot be driven.
Wills Void Due To Uncertaint
S.89 of ISA states that if the Will were uncertain as regards either to the object or subject of the Will then it would be invalid. The Will may express some intention but if it is vague and not definite then it will be void for the reason of uncertainty. The Will may depose of the property absurdly or irrationally i.e the intention maybe irrational or unreasonable, but that does not make it uncertain. For uncertainty to be proved it has to be proved that the intention declared by the testator in the Will is not clear as to what is he giving or whom is he giving. Only if the uncertainty goes to the very root of the matter, then only the Will has to be held void on the grounds of uncertainty.
Will Void Due To Impossibility Of Condition
124 of ISA provides that a contingent legacy can take effect only on happening of that contingency. A conditional Will is that Will which is dependent on the happening of a specific condition the non-happening of which would make the Will inoperative. S.126 of ISA provides that a bequest upon an impossible condition is void. The condition maybe condition precedent or condition subsequent.
Will void due to illegal or immoral condition
S.127 of ISA provides that a bequest, which is based upon illegal or immoral condition, is void. The condition which is contrary, forbidden, or defeats any provision of law or is opposed to public policy, then the bequest would be invalid. A condition absolutely restraining marriage would also make the bequest void. S.138 of ISA provides that the direction provided in the Will as to the manner in which the property bequeathed is to be enjoyed then the direction would be void though the Will would be valid.
A will containing any element of suspicious nature can be challenged.
Wills having suspicious nature such as,
Execution of two wills at a time, the first being designed vaguely and the other supplementing it. Or,
Purchasing of number of stamps for writing out the will, or,
Too many thumb impressions, thereby confusing all with one another,
Giving the property to someone who not remotely close to the testator,
When the will is was executed in the hospital, and the same was not mentioned in the will,
Lack Of Due Execution
A will must be made by the testator and duly signed by him. Signature or thumb impression of the testator is not the only requirement. Along with the testator, the will must contain the signature or thumb impression of two witnesses, witnessing that the will belongs to the testator. If any if these is not present, there is a lack of due execution in the will and the same can be challenged in the court of law.
Lack Of Testamentary Intention
The wordings used in the will is to be followed religiously as it is the only desire left of the testator as to what is to be done with his property. It is the desire of the testator which is to be executed. If the will contains any element which shows that, any provision made in the will might be against the testamentary intention of the testator, the same can be challenged in the court of law.
Lack Of Testamentary Capacity
The testator while making a will
shall understand the nature of the act and its effects;
shall understand the extent of the property of which he is disposing;
shall be able to comprehend and appreciate the claims to which he ought to give effect and, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
Consequences When No Will Is Made
When an individual dies without making a will he is said to have died intestate and in that case his property will be inherited by his heirs in accordance with the law of succession as applicable to that person.
Succession to the property of Hindus is governed by the provisions of the Hindu Succession Act, 1956. Succession to property of Muslims is governed by the Muslim Law. A person other than Hindus and Muhammedans viz Jain, Sikh or Buddhist is governed by the Indian Succession Act, 1925.
Selection of The Witnesses
Causal selection of the witnesses to the will should be avoided as it may create difficulty in proving the execution of the will in future. It should be kept in mind that the attesting witnesses may on some future occasion be required to appear as a witness in the Court to prove the execution of the will. In selection of the attesting witness the following points should be considered;
(1) The attesting witness as well as his wife or her husband must not be a beneficiary under the will because the bequest in their favour would be invalid. (Sec. 67 of the Indian Succession Act, 1925.) However the validity of other bequests made under the will are not affected.
(2) As far as possible select the attesting witnesses selected should be some years younger to testator because in such a case there is every likelihood that atleast one of the attesting witness would survive the testator and would be available for proving the execution of the will by the testator.
(3) If any of the attesting witness dies during testator’s life time, it is better to execute a fresh will with new attesting witnesses.
(4) In the event the testator is aged, infirm or suffering from physical illness, it is advisable that the family doctor of the testator should be an attesting witness. It is also advisable that the advocate or the solicitor who has drafted the will should be an attesting witness.
(5) The attesting witnesses should be of integrity and sound status.
Safe Custody Of Will
After the execution of the will it may be deposited by the testator in some safe custody such as with his banker or solicitor or chartered accountant or any other person of his confidence. A person who is not desirous of registering his will is at liberty to deposit the same for safe custody with the Sub-Registrar so that such deposited will can be made available to his executors upon his death by the Sub-Registrar’s office. Deposit of the will is also optional.
Once a Will has been made, it is important to ensure that the Will is kept in a safe place in a manner that the beneficiaries get it after the death of the Testator.
Some countries have a national depository for safekeeping of Wills. In some other countries, there are private systems of institutionalized safekeeping of Wills. India does not have any such facilities. It, hence, become responsibility of the testator to take care to ensure that there is no foul play after death.
Ideally, the Will should be made in as many copies as the number of beneficiaries. For example, if there are three beneficiaries the testator should hand over an original copy of the Will to each of the three beneficiaries. In such a case, it should be mentioned in the Will that “This Will has been prepared in three copies. Each copy is original and bears equal weight. Each beneficiary is being handed over a copy of the Will immediately after execution.”
Hindi films of last century often had a scene where immediately after the death of a rich man, a lawyer would come and read out the Will of the deceased. Keeping the Will safe with a trusted lawyer (while keeping it confidential from family members and beneficiaries) till the time of death is neither a legal requirement nor is a recommended course of action.
Finding a trustworthy lawyer in modern India is not easy. A crooked lawyer can easily substitute the original Will with a forged one. If for any reasons, a testator does not want his / her Will to be known to the beneficiaries during his / her lifetime, the following steps may be taken:
i. Keep the original Will with a trusted friend / family member / lawyer / law firm.
ii. Get the Will registered at the office of relevant Sub-Registrar
iii. Hand over self-certified copies of the Registered Will to all banks where the testator has accounts, lockers etc.
iv. Hand over self-certified copies of the Registered Will to more than one friend, family member etc.
Wills And Tax Planning
Quite often tax planning is resorted to by a testator through the medium of a Will. Also social aspects may require the testator not to give away property to one or more legatees specifically but to create the trust of the properties or part of the properties, mentioning the beneficiaries but providing indeterminate shares to the beneficiaries and leaving the distribution of income or corpus to the trustees of the trust considering the need or requirement of various persons mentioned in the trust deed as beneficiaries. The obvious advantage in adopting this method is to see that the income or corpus of the property settled on trust is distributed to all or some of the beneficiaries as per the requirement of those beneficiaries such as education, marriage, settlement in life etc. The tax advantage will result if the trust created by Will does not give the income or corpus separately to one or more beneficiaries but provides indeterminate shares in the income or property at the discretion of the trustees. In case of such a trust created by Will it will be a separate taxable entity liable to tax at the appropriate rate and not at the highest tax rate which would be the position if such trust with indeterminate shares was created during his life time. However, only one such trust with indeterminate shares can be created for getting the benefit of being taxed at appropriate rate. The advantage would be that the income distributed by trustees will not be taxable in the hands of the beneficiaries who receive the same but will be taxed in the hands of the trustees at the appropriate rate and not at the maximum rate. If a trust is created with specific shares to the beneficiaries income or corpus which a beneficiary is entitled to have, the income or wealth will be added to his/her income or wealth. This situation will be avoided by creating a trust by will with indeterminate shares.
Will as Trust Deed
Often one may wish to give money and assets to some loved ones but one is not sure if they will be able to take care of it. This is most often the case when the loved ones are either too young or are mentally / physically challenged. In such cases one may wish to create a trust naming the loved ones as beneficiaries of the trust. One may also wish to set aside a portion of one’s wealth for charitable purposes and may wish to create a public trust for the purpose.
Creating a trust can either be done during one’s lifetime by a Trust Deed or may be done through one’s Will.
A trust for the benefit of one’s loved ones is called a private trust and is governed by The Indian Trusts Act, 1882 (Act No. 2 of 1882). A trust for charitable object is governed by Public Trusts Act of the concerned state of India.
Noticeable points from the above sections for creation of Private Trust using a Will are as follows:
a) One may create a Private Trust using one’s Will with movable property only. One’s immovable property cannot be transferred to a private trust through a Will.
b) Intention to create Trust should be clearly mentioned.
c) Purpose of the Trust should be clearly stated.
d) The beneficiaries should be clearly named.
e) The movable property being moved to Trust should be clearly defined and there should be no confusion or uncertainty around it.
f) Trustee(s) should be clearly named and / or the process of appointing trustee(s) should be clearly specified. We also advise that the Will contains directions about dissolution of the Private Trust and distribution of assets among beneficiaries. In case the intention is to create a Public Trust for charitable, religious, educational or scientific purposes, one may do so also using one’s Will. For creating a Public Trust, the following points should be noted:
a) One may create a Public Trust using one’s Will with movable as well as immovable property.
b) Intention to create Public Trust should be clearly mentioned.
c) Purpose of the Trust should be clearly stated. Purpose must be charitable or educational or religious or scientific or social. Purpose should not include benefit to any specific individuals.
d) The property being moved to Public Trust should be clearly defined and there should be no confusion or uncertainty around it.
e) Trustee(s) should be clearly named and / or the process of appointing trustee(s) should be clearly specified.
A Private Trust does not need to be registered, while a Public Trust needs to be registered. Relevant provision under Madhya Pradesh Public Trusts Act, 1951 reads as follows
Provisions of section 11 are for the state of Madhya Pradesh. Each state has its own law which is largely similar to the above for public trusts. Essentially, it is obligatory to get the Public Trust registered with the appropriate authorities. No such obligation exists in case of private trusts. If it is proposed to create either a Private Trust or a Public Trust through a Will, we recommend that professional help be taken for drafting of the Will.
Some Further Aspects Of Discretionary Trust By Will.
Discretionary trust by Will is the most commonly utilized mode of tax planning by reason of the second exception to Section 164 of the Income Tax Act. Section 164 and the corresponding provision of the Wealth Tax Act contained in Section 21 provide that where income or wealth is receivable under a trust declared by Will the maximum marginal rate is not applicable and only the appropriate rate will be attracted on the income or wealth on such a discretionary trust. Thus, it is most advantageous to create a discretionary trust both as regards income and wealth left by a testator to a group of legatees.
The requirement of the law is, therefore, satisfied when a trust is declared by a Will and the income or wealth is receivable under such a trust and such income or wealth is not specifically receivable on behalf of any one person or individual shares therein are indeterminate or unknown. If these requirements are satisfied, then discretionary trusts created by Will will be taxable as a separate unit of assessment under Section 164 qua income and Section 21(4) qua wealth and neither the income nor wealth will be includible in the assessment of the beneficiaries.
But see CIT v/s. Kamalini Khatau, 209 ITR 101 (SC) when it is held that if any beneficiary of a discretionary trust has received any income from the trust, it is open to the Income Tax Dept. to tax the beneficiary on the income received under s. 166 which permits such direct assessment. This mode of planning has certain obvious advantages: (1) the income or wealth is not includible in the assessment of any beneficiaries under such trust and (2) the trust will be taxed as an independent unit at an appropriate rate. Thus, the assessments of the beneficiaries are not disturbed unless income is received by any beneficiary in which event Dept. has option to directly tax the beneficiary on that income, coupled with his other income. (See CWT v/s. Arvind Narottam, 102 ITR 232 (Guj). (4) The trustees would have discretion of distributing income and wealth amongst the beneficiaries in such proportion as they think necessary from time to time, thus enabling them to distribute the estate according to the needs of the beneficiaries. Even they can be empowered not to distribute but to accumulate income or distribute to some & not to other, further if long period is mentioned of the trust provision can be made to accelerate distribution period or extend it. Further future beneficiaries can also be provided for adding such as future spouse or children of existing beneficiaries.
Whether Trust Can Subsequently Receive Gifts/ Donations
Another question which has often arisen in the context of such a discretionary trust is whether such a trust can subsequently receive gifts or donations after they come into force on the death of the testator and if so, how the income from such subsequently gifted amounts is to be treated. The point is debatable. Every gift in fact, creates a new trust for the same purposes and, therefore, the income from such gifted amounts and the gifted amounts themselves cannot be said to be part of the trust declared by Will and they may not be entitled to the benefit of the appropriate rate of tax but may be liable to be taxed at a maximum marginal rate. It is also possible to contend that it amounts to a gift to an existing trust and a new trust does not come into being with every donation subsequently made. There is no decision of any Court on this point.
International Planning Options
For estate planning purposes, there are generally three different ways to address owning assets in multiple venues. This includes 1) multiple Wills, 2) an International Will, or, best of all, 3) an International Trust combined with one of the first two options.
With the first option, individual estate planning with different Wills in different countries acting simultaneously upon death is one solution. Each Will from each jurisdiction must be carefully drafted so it is limited only to property within that country and so it does not invalidate other, pre-existing Wills in other countries. If not co-ordinated correctly, some very unusual or unintended consequences could result.
Multiple Wills can be the most complex and difficult documents to write, especially where assets or beneficiaries are located across several jurisdictions. What makes them more challenging are the laws of different assets located in multiple venues. The issues become even more complicated when living in a country which might apply Sharia law to assets located in the country.
A second option is an International Will. Most people – including most lawyers – have never heard of an International Will. But in many situations this option could be far better than multiple Wills in multiple jurisdictions, that may or may not be properly coordinated to work together.
In 1973 in Washington, D.C., the International Institute for the Unification of Private Law (UNIDROIT) held a convention to provide for a uniform international law on the form and standard for an International Will. The purpose was to create an International Will that would make estate planning with international ramifications more straightforward, and without revoking or interfering with local sovereignties.
An International Will is relatively straight forward.
For an International Will to be effective, there is a list of requirements that must be met. For example, the Will must be for only one person (no joint Wills), and the Will must be in writing, but may be in any language. In addition, the Will must be witnessed and signed by two witnesses and an attorney (a notary is not sufficient), and all signatures must be at the end of the Will. If the Will is more than one page, each page must be numbered and must be signed on each page. And if the testator is unable to sign, the reason must be clearly noted in the Will.
In addition, a certificate must be attached to the end of the International Will, signed by an attorney, attesting that the requirements and procedures for drafting and execution have been satisfied. There are other formatting and signature concerns, but as to the actual content of the Will, the above generally satisfies the International Will requirements.
What is known as the Uniform International Will Act was enacted in Washington DC under the UNIDROIT convention. The greatest benefit to an International Will is knowing that when it is properly drafted it is valid in any jurisdiction that has signed or enacted the Uniform International Wills Act. To learn more about UNIDROIT, go here.
Some Prominent abridged case laws regarding “Will” given below.
In 1973 an international convention, the Convention providing a Uniform Law on the Form of an International Will, was concluded in the context of UNIDROIT. The Convention provided for a universally recognised code of rules under which a will made anywhere, by any person of any nationality, would be valid and enforceable in every country which became a party to the Convention. These are known as “international wills”.
Belgium, Bosnia-Herzegovina, Canada (for 9 provinces, not Quebec), Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal Slovenia, The Holy See, Iran, Laos, the Russian Federation, Sierra Leone, the United Kingdom, and the United States have signed but not ratified.International wills are only valid where the convention applies. Although the US has not ratified on behalf of any state, the Uniform law has been enacted in 23 States and the District of Columbia.
For individuals who own assets in multiple countries and at least one of those countries are not a part of the Convention, it may be appropriate for the person to have multiple wills, one for each country. In some nations, multiple wills may be useful to reduce or avoid taxes upon the estate and its assets.Care must be taken to avoid accidental revocation of prior wills, conflicts between the wills, to anticipate jurisdictional and choice of law issues that may arise during probate.
When individuals reside in one country and own assets in another, the laws of different countries can create unintended consequences if you pass away. This includes assets such as cash, real estate, stocks, bonds, and most other types of property.
Occasionally, some countries recognize Wills drafted in another jurisdiction. For example, a U.S. Will may be valid in a foreign country if it satisfies all formalities under the laws of the foreign jurisdiction. However, some countries will not recognize a Will drafted in another country under any circumstance, or only in a special situation.
Consider that in the U.S. an individual is typically free to dispose of their estate as they desire, subject to spousal rights. By comparison, France makes almost no provision in its succession laws for a surviving spouse. So, a U.S. individual passing away (with Will or no Will) and a solely owned property in France may leave the surviving spouse under French law with no claim to the foreign asset.
When an individual or family is “international” – with assets located in different venues – making provisions to dispose of property is essential.
There are different types of indispensable planning tools to protect you and your family assets. Estate planning for individuals living abroad – or with assets located in more than one country – can become exceedingly complex.
Estate or death taxes, and related generation skipping transfer taxes, are very convoluted areas of tax law, particularly in the U.S. A ‘quick-fix’ expatriate Will, just won’t solve the numerous tax or property issues involved in the international scenario.
And don’t be fooled into believing you have an enforceable Will simply because your local Consulate or Embassy in the new venue has notarized a Will or other legal document. Notarization simply ensures that the signatures on the document are authentic. That is all it does. The person notarizing the document is not giving legal advice, nor are they assuring that the document will serve the purpose for which it was intended. The notary simply affixes his official stamp and signature along with official registration number on the document while witnessing the signatures.
Sample Will for Hindu Resident in India
I………………………., s/o Late ………………………. r/o ……………. ……………. …………; date of birth ……… …………; holder of Indian passport no. …………………. dated ……………. issued at…………..having PAN …………………….; do hereby make this Will, which is my first and last Will, and bequeath all my immovable and movable properties located in India to XXX,
s/o ……………. …………… …………, date of birth …………… holder of passport no. ……………… of ……………………. issued on …………… by ……………. r/o ………………… …………………..
The bequeathment in favour of XXX is being done by me out of genuine love and affection for the young boy and not under the burden of any relationship or obligation. My own children do not treat me well and I have no desire to give them anything during my lifetime or after my death. My wife has died two years ago. Without affecting the generality of the foregoing, I hereby declare the following as part of my Will:
The following immovable assets and properties owned by me shall bequeath to XXX:
Land, building, if any, and assets at …………………. admeasuring about ………. hectares.
Land, building, if any, and assets at ………….. ……………….. ……………. admeasuring about 4.180 hectares.
1. In case any of the above properties is sold or transferred by me before my demise, this Will shall not operate in respect of such sold or transferred property /properties.
2. In case there are properties in India (other than the ones mentioned above) in which I have any rights including tenancy and / or ownership rights at the time of my demise, all such rights shall pass to XXX.
3. In case I acquire any other property or properties or rights in any property or properties in India before my demise, all such properties and rights in properties will also pass on to XXX after my demise.
4. All movable assets located in India including jewellery, household goods, furniture, fixtures, vehicles, shares (in listed and unlisted Indian companies), investments in mutual funds, deposits in banks (including balances in current accounts, saving accounts, fixed deposit accounts and any other accounts), contents of bank lockers, deposits with financial companies, moneys receivable from other parties, dues or claims from insurance companies and cash will pass to XXX after my demise.
5. All rights that vest with me due to membership of societies, clubs, associations and such other bodies will also pass to XXX after my demise.
6. All rights that vest with me due to contracts and agreements will also pass to XXX after my demise.
7. In case my death takes place before XXX attains the age of 21 (Twenty One) years, after my demise ……………… …………. s/o ………………, date of birth ……….…………….., holder of passport no. …………… of …………………. r/o ………………… shall act as Guardian and Caretaker of all assets and properties bequeathed by me to XXX till XXX attains the age of 21 (Twenty One) years.
8. Age limit of 21 (Twenty One) years mentioned above will apply notwithstanding the definition of “minor” contained in sub-section 4(a) of Hindu Minority and Guardianship Act, 1956 and sections 3 and 4 of The Indian Majority Act, 1875.
9. As Guardian and Caretaker, ……………………… will have all rights and privileges to sell or transfer or give on lease or mortgage or otherwise dispose of (excluding by gift and by Will) any of the assets and properties bequeathed to XXX in any manner that she / he considers in the best interests of XXX subject to the condition that all proceeds from the sale or transfer or lease or mortgage or disposal are strictly either used for the benefit of XXX or are invested in a prudent manner for the future benefit of XXX. Power and duties of Guardian and Caretaker will be as specified in respect of a Natural Guardian under section 8 of Hindu Minority and Guardianship Act, 1956 except to the extent specifically permitted or rohibited by the provisions of this Will.
10. This Will relates only to my assets and properties in India and does not affect any assets and properties outside India that I might have at the time of my demise.
11. I have made this Will out of my own free will. I am in good health at the time of making this Will. I have understood the contents of this Will in full. There was no force or coercion by anyone on me to execute this Will or to add any part to this Will.
12. This Will is being made in three (3) copies. One copy of the Will is being handed over to …………….., another copy is being handed over to ……………., and one copy is being kept with …………… ………………… All three copies are original and carry equal force.
IN WITNESS WHEREOF, I…………….. have executed this Will by signing on each page of this Will in front of the two below-named witnesses who have both signed in front of me.
Signature of Testator
We hereby attest that this Will has been signed by Shri………….as his last Will at ………(Place)……… in the joint presence of himself and us. The testator is in sound mind and made this Will without any coercion.
Signature of Witness (1)
Signature of Witness (2)