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Concept of will & Law of Will in India
A will, or testament, is a legal document through which a person (testator) specifies the distribution of their property upon death and designates an executor. In India, the Indian Succession Act, 1925 governs wills for Hindus, Buddhists, Sikhs, and Jains, while Muslims follow their own laws. A will can be revoked during the testator's lifetime and may include various properties, with specific rules on beneficiaries and registration.
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Introduction to the concept of a Will by Ms. Ira Gupta, Advocate.
Explains what a Will is, highlighting the testator's wishes, property distribution, and key characteristics.
Discusses the Indian Succession Act, 1925, and applicable laws for different religions.
Enumerates advantages of having a Will, such as avoiding disputes and reducing tax liabilities.
Describes privileged and unprivileged Wills, including eligibility criteria for each.
Lists who can create a Will, including sound-minded individuals and exceptions.
Identifies who cannot create a Will, including minors and intoxicated individuals.
Explains who can be beneficiaries under a Will and restrictions under the Indian Succession Act.
Outlines what types of properties can be included in a Will, emphasizing ownership rights.
Lists key elements that must be included in a Will for it to be valid and effective.
Describes how minor changes can be made to a Will through a Codicil.
Explains the ways a testator can revoke a Will during their lifetime.
Details the non-compulsory nature of Will registration and its advantages.
Discusses the flexibility of Will execution by Indian individuals globally.
Explains what probate is and the process involved in validating a Will.
Identifies circumstances requiring probate for Wills under specific jurisdictions in India.
Explains how Wills are handled under Muslim Law, highlighting restrictions on bequeathments.
Concludes the presentation with thanks.
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Concept of will & Law of Will in India
- 1. CONCEPT OF WILL ByMs. Ira Gupta, Advocate Mobile No.: 9818976099
- 2. WHAT IS WILL? Will or testament is a legal document by which a person, the testator, expresses his wishes as to how his property(ies) is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution. Will mainly aims at: Wishes of the testator Disposition of property Primary characteristics of Will: Takes effect after the death of testator Revocable during the lifetime of testator
- 3. LAWS IN INDIA 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. Statues: Indian Succession Act, 1925 Hindu Law (Hindus Personal Law) Muslim Law (Muslims Personal Law) Indian Registration Act, 1908
- 4. ADVANTAGES OF WILL Avoidance of any family dispute by clear disposition of property Fraudulent persons can be excluded Help reduce the amount of Inheritance Tax Special responsibilities can be catered towards any needy family member Special provision can be made for any non family member Laws of inheritance and succession are complicated
- 5. KINDS OF WILLS Privileged Wills 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. Privileged Will is a special Will made in extraordinary circumstances like war or dangerous expedition. Unprivileged Wills Every person who is not entitled to make a privileged Will can only make an unprivileged Will.
- 6. WHO CAN MAKEA WILL? Every person who is of sound mind and major Person who is willing to write a Will without any influence, coercion or pressure. Persons who are deaf or dumb or blind, if they are able to know what they do by it.. A person who is ordinarily insane may make a Will during an interval in which he is of sound mind. Prisoners and Aliens
- 7. WHO CANNOT MAKEA WILL? Corporate bodies Person who is intoxicated or ill to a level that he cannot understand the terms of Will Minor
- 8. FOR WHOM THEWILL CAN BE MADE? Any person capable of holding property can be a beneficiary/legatee under a Will Like a minor, lunatic, a corporation 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 case 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. Where there is no beneficiary of Will in existence at the time of testator's death.
- 9. WHAT PROPERTIES COVERED BYWILLS? 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. If the testator has acquired his share in the ancestral property, then he can make a Will for his share. 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.
- 10. KEY INGREDIENTS OFA WILL Testator Details Declaration In The Beginning Details of Property and Documents Details of ownership By The Testator Beneficiary Details Desires to be carried into effect after his / her death Appointment of Guardian, in case of minor Executor of the Will Revocation of previous Will, if any Signature and date Numbering of paragraphs and pages Two or more Attesting Witness
- 11. CODICIL TO THEWILL Few changes in the Will Without changing or altering the entire Will Can be altered and revoked
- 12. REVOCATION OF WILL Will can be revoked, during the lifetime of testator when he is competent, in following manner: By execution of subsequent/new Will By writing and declaring an intention to revoke previous Will By registration of new Will By destruction of old Will In case of marriage of a Parsi or Christian testator, his/her Will stands revoked (however, this does not apply to Hindus, Sikhs, Jains and Buddhists)
- 13. REGISTRATION OF WILL As per Registration Act, 1908, Registration of Will is not compulsory, its optional. In case of a registered Will, all subsequent alterations or modifications (Codicils) should also be registered. Advantages of Registration of Will: Security of Will is enhanced as it is inaccessible to the general public If registered and not contested, then Probate need not be obtained. No time limit for registration Strong legal evidence about the execution of Will Reduces chances of any challenge against the execution of Will
- 14. PLACE OF MAKINGTHE WILL Indian courts give importance to the intentions of the testator. 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.
- 15. PROBATE OF AWILL It is the copy of the will which is given to the executor together with a certificate granted under the seal of the court and signed, by one of the registrars, certifying that the will has been proved. The application for probate shall be made by petition along with copy of last Will and testament of the deceased to the court of competent jurisdiction. The copy of the will and grant of administration of the testator’s estate together, form the probate. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased.
- 16. WHERE PROBATE ISCOMPULSORY? Wills that are made in the areas of West Bengal, Bihar, Orissa, Assam and within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay. Wills that are made outside these territories but where the property is situated in these territories also require a probate. The Indian Succession Act also mentions that a probate is only required for Wills made by Hindu Buddhist, Sikh or Jains. Thus, no probate is required for Wills made by Muslims.
- 17. WILL UNDER MUSLIMLAW A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property. Under Muslim law, the testamentary right i.e. the right to transfer the properties through will, is restricted in two ways: i. There is a restriction upon the quantity of property bequeathed. ii. In respect of the person (legatee) to whom the property is given.
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