What is a WILL?
In India, as in every other part of the world, a WILL refers to a unilateral legal document wherein a person (‘testator’) declares his intention with respect to disposal of his property which he desires to take effect after his death. Such a disposal comes into effect only after the death of the testator.
An Indian citizen who is over the age of 18 years (i.e. not a minor), of sound mind, and free from coercion, fraud or any undue influence from other persons can make a legally valid Will in India.
A Will can be revoked or altered by the testator at any time if he is competent to dispose of all or part of his property in the following manner:
- By execution of a subsequent Will
- By declaring an intention to revoke the Will
- By burning the Will
- By tearing the Will
- Otherwise destroying the Will
A revoked Will ceases to have legal validity.
A Will’s legal nature can ensure that their assets are amicably distributed in the way they desired while they were still alive. However, if a person with property dies without making a Will, there can be serious legal and administrative problems for their survivors to deal with their estate.
The document purporting to be a Will or a testament must be legal. It must conform to the laws of India and must be executed by a person legally competent to do so.
Types of Wills in India
There are mainly 7 types of Wills considered valid in India:
- Unprivileged: Created by a person who is not a soldier on expedition or engaged in actual warfare or a mariner at sea
- Privileged: Made in writing or ****** by those in active services like soldier, airman or mariner
- Conditional/Contingent: Valid only in the event of some contingency or condition; if the contingency does not happen or fails, the Will is revoked
- Joint: Made by 2 or more persons; can be revoked by either person at any time during the joint lives or after the death of one by the survivor
- Concurrent: Written by one person wherein two or more Wills provide separate instructions for disposal of different types of property (e.g. movable and immovable)
- Mutual: Testators confer reciprocal benefits upon each other
- Holograph: Written entirely in the handwriting of the testator
In addition, these 2 Wills are also commonly seen in India:
- Duplicate: Can be created by a testator for safekeeping with a bank, executor or trustee
- Sham: A Will held invalid as the testator did not intend it to have been executed as per his/her wishes, maybe due to fraud, coercion or the taking away of their free agency
Nominations, wills and succession
In the case of shares in a Co-operative Society, the Supreme Court of India has ruled that once a nomination is made by a member in a format prescribed by the Law, the Society (and its officials) must transfer the shares in the name of the nominee irrespective of objections raised by other persons claiming to be heirs or successors, unless otherwise directed by a competent court of Law. The Society has no authority to decide on the Title of the property or its succession.
However, nomination does not automatically imply ownership. Nomination insulates the Society against the legal claims of other heirs but does not insulate the nominee against these same claims. If an heir is declared a nominee by a deceased person when alive, other heirs are equally entitled to the estate of the deceased. Even if a person is recognised as a legal heir (or a legal representative of the deceased), the rights of other persons entitled to the estate by virtue of the Law of Succession are not lost, and the nominee/legal heir/legal representative holds the share and interest of the deceased for disposal in accordance with law. In other words, the nominee merely holds the estate of the deceased in ‘Trust’ until succession issues are resolved by the heirs among themselves or through a Court of law. In either case, the Society has no role to play in the matter, except to abide by the legal decision.
The only instrument that can transfer ownership rights of the deceased’s property to another living human is a Will, and that too only after Probate is obtained by the legal Executor of the Will.
Persons purchasing an immovable property where vendor’s claim to the Title is only by virtue of ‘Nomination’ must seek legal advice and obtain a ‘No Objection Certificate’ from all other legal heirs.
The role of religion in Indian WILLS
A will made by an Indian citizen who is a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Hindu Succession Act, 1956, and Hindu Succession (Amendment) Act 2005.
If a person dies without making a Will, his properties get distributed to his legal heirs according to the personal succession laws based on religion. If there are no first degree legal heirs, then the properties can go to second degree legal heirs. Finally, if there are no legal heirs at all, then the State would take the property.
Muslims are not governed by the Indian Succession Act, 1956 and they can dispose their property according to Muslim Law with 2 basic restrictions:
- They can bequeath only one-third of their property by Will
- Their heirs may consent to bequest in excess of one-third of the testator’s assets
A Muslim testator may change his Will during his lifetime or cancel any legacy. Also, if he becomes unsound of mind and continues to be so until his death, his Will may become void. Additionally in such a situation, a bequest which is contingent OR conditional OR in the future OR an alternative to a pre-existing bequest would also be void.
Important terms and definitions w.r.t Wills in India
- Legatee/Beneficiary: person(s) who inherits the property specified in the Will
- Executor: legal representative of a deceased person (testator) and all the property of a testator vests in him
- Codicil: an instrument deemed to be a part of the Will that explains, alters or adds to a Will’s dispositions
- Probate: copy of the Will certified under the seal of a competent Court; can only be granted to the Executor and is mandatory for immovable assets (in multiple states)
What are the requirements to prepare a Will in India?
In India, a Will can be written in any language and without any technical words. However the language and words used should be clear and unambiguous so that the intention of the testator is reflected in his Will. It can be either handwritten or printed.
For executing a Will (or a codicil), no stamp duty is required to be paid. Therefore a Will need not be made on stamp paper.
There is no prescribed form for creating a Will in India. However, it should contain the following information:
- Testator’s identification information including full names and addresses
- Testator’s signature and date
- Details of two witnesses plus signatures
- Details of the executor
- Details of property
- Details of all beneficiaries and what they are entitled to
- Exclusions, if any
In order for a Will to be legally effective, it must be properly signed, dated and attested. It must be initialled by the testator at the end of every page and next to any corrections.
Registration of Will
To be considered legal, the Will does not need to be notarised. It is also not compulsory to register a Will. Registration does not give any special sanctity to the Will. However, registration by the testator himself evidences the genuineness of the Will. Additionally, registration provides evidence that the proper parties had appeared before the registering officers and the latter had attested the Will after ascertaining their identity. Therefore it is a good idea to register a Will to prevent fraud or tampering.
Whether registered or not, a Will must be proved as duly and validly executed (as required by the Indian Succession Act, 1956). Once a Will is registered, it is placed in the safe custody of the Registrar. Therefore it cannot be tampered with, destroyed, mutilated or stolen.
If an unregistered Will is challenged in court, as long as it is notarised with two witnesses and the beneficiaries can provide a medical certificate, the document will be considered fool-proof and legally valid.
How to make a Will in India
To begin with, a testator must make a list of all their properties followed by a list of all the beneficiaries to whom they want to give their property. Finally, they should decide on who gets what.
The following process can be followed to prepare a legally valid Will in India:
- Draft the will
- Get it attested before 2 witnesses
- Notify next of kin or executor
- Keep the Will in a safe place
- Optional: Get the Will registered at the sub-registrar office
Any future changes to the Will should be made through a Codicil document.
If you want to protect your loved ones after you pass away, a WILL is a crucial document.
Taxguru Consulting Services can help you prepare your legal Will quickly and at reasonable cost. Contact Us today!