Sumit Kochar , Apoorv Shishodia
December 19, 2022
Everyone at some point of time becomes anxious about what will happen to his belongings after his death and wants to ensure that the life he has lived has been worthwhile. The outbreak of Covid-19 pandemic has already provided everyone enough reasons to be prepared for any uncertain event. Life and death are uncertain and is beyond the control of humans but ensuring as to how his/ her property should devolve and to whom is shall devolve, after death is under control of humans, through a simple yet highly effective document called ‘Will’.
It is preferable to make a Will to ensure that one's actual intentions are followed, and the property is distributed in accordance with the Will. If a person passes away without leaving behind a Will, his or her property will pass according to the law of intestate succession rather than testamentary succession (i.e., in accordance with the Will). In this article we will understand that what is Will, Important terms relating to Will, Role of Executor, Essential of a valid Will, Why should you have a Will, Assets Mapping, Assets Transfer, Requirement of a Lawyer to draft a Will, Types of Will, Registration of a Will, Attestation of a Will, Stamping of a Will and Modifications in Will.
In simple words, Will means a legal declaration of a person's wishes regarding the disposal of his/ her property or estate after death. Any person of sound mind and over the age of 18 (Eighteen) can make a Will. Any language may be used to execute a Will, and there is no specific format required by Indian law. It can be written on simple paper without needing to be notarized or executed on stamp paper. It can be written by hand, typed, or printed.
This is the term used to describe the person who drafts the Will. In the case of a male, the term used is testator, while in the case of a woman, the term used is testatrix. Preferably at the conclusion of the Will, the testator's signature is necessary, or any other form of identification in the event that they are unable to sign owing to a disability.
The individual to whom the testator leaves his possessions and assets in the Will is referred to by this term. No matter whether they are the testator's blood relatives or not, a Will can identify more than 1 (one) beneficiary.
This is the individual that the testator names to carry out the terms of his/her Will after his/her death. However, appointing an executor is no mandatory. A Will's beneficiary may also serve as the executor.
The executor of a Will is a legal representative of the decedent and carries out the instructions specified in the Will when the decedent passes away. Simply said, a Will's executor has a crucial function to perform in managing the estate of a deceased individual. Since the executor and beneficiary have a strong tie of trust, it is the duty of the executor to carry out the terms of the Will carefully and competently. A trustworthy family member or acquaintance must be taken into consideration while choosing an executor. A trustworthy lawyer must be named as the executor when close relatives or friends are unable or unwilling to carry out a Will. A executor must be above the age of 18 (eighteen) years and of sound mind.
To understand that why executor is important for the Will, you should also understand that what is probate?
A probate is a permission or certification granted by the court of competent jurisdiction that acts as definitive proof that the Will was lawfully made by the testator (dead) and witnessed by witnesses and that there are no suspicious circumstances, such as fraud or coercion, surrounding it. However, probate is not compulsory in every state of India and currently probate is mandatory only in Kolkata, Mumbai, and Chennai. Nevertheless, it is always advisable to get the probate done in every state as it reduces the possibility of disputes in future and because of the probate executor can lawfully and without any problems can distribute the assets of the Will to the beneficiaries.
There is no such fixed format for writing a Will, however, following are some basic requirements which should be followed to avoid any dispute in the future:
Apart from the above-mentioned essentials, you can also consider below points to reduce more chances of dispute in future:
There is preconceived notion that only those who are super rich and have plenty of assets are required to have a Will, however, this is not true, there are many good reasons for every person to have a will:
Asset mapping is a process of identification and recognition of the assets and the same holds immense importance in a Will. Whenever a Will is prepared the same mentions as to who will be entitled to which estate after the demise of the testator. If the Will does not clearly specify that which asset will be transferred to whom the same would frustrate the purpose of the Will. Hence, asset mapping i.e., recognising and identifying the assets and clearly specifying as to who would be entitled to the same would fulfil the purpose of the Will.
Asset transfer is the process by which the assets under the control and ownership of a person are transferred to some other person. Asset transfer with respect to Will is the process by which the assets are transferred to the person so wished as named in the Will that is to any person weather a family member or a distant person. An asset transfer in accordance with the Will provides immense satisfaction to the owner (deceased) during the lifetime that his property and estate will be inherited by those, so he desires. Hence, the transfer of assets through Will is a great way of devolution of property.
Although it is not mandatory to hire a lawyer or professional for drafting a Will and a normal person can also draft a Will for himself. However, one should always keep in mind that it is not an ordinary document and should be backed by legal advice/ professional advice to avoid any dispute in future, therefore, it is recommended to draft a Will with the help of a lawyer/ professional. Following are some reasons that why you should a hire a lawyer for drafting a Will:
1. Ensuring that all the assets are included: Some individuals mistakenly believe that the only thing in a Will is the property given to their loved ones, who are known as the Will's beneficiaries. The fact is that a Will is not just limited to real estate and may include any assets you want. In order to avoid problems when it comes time to execute the Will, lawyers make sure that all assets are listed and that arguments are avoided.
2. To ensure that everything is compliant with law: Even though it is feasible to create a Will that is legally enforceable on your own, however, having an attorney to carefully draft the Will increase the chances of it to be upheld in the court of law. Each state has tight laws regarding probate, and those laws are always changing. This implies that you must use a template that is current and complies with your state's regulations. It's likely that if you utilize an out-of-date template, your Will won't be enforceable.
3. To manage difficult family dynamics: Maybe you've been married previously, or you have kids from a previous relationship. No matter how your family is structured, estate planning attorneys may assist you in creating arrangements that are perfect for your present circumstances. They can also assist you in updating important paperwork if your situation changes.
Apart form the reasons mentioned above that why you should hire a lawyer for drafting the Will, one should always pay attention while choosing the best lawyer/professional for drafting the Will. You should always look at the experience and knowledge of the lawyer/ professional before hiring him for drafting your Will.
In very broad terms and as per the Indian Succession Act, 1925, Wills can be categorised in two types:
In India, the privileged wills are those that are typically written by army personnel and used in combat-like circumstances. Additionally, seamen who spend the most of their working life in hazardous settings generate them. Such Wills can be simply made verbally or in writing and have few legal ramifications.
The other sorts of Wills have an unprivileged format, and a number of legal procedures must be followed in order to draft one of these. These kinds of Wills must be created with certain requirements, such as signature verification and witness attestation. A normal citizen is required to draft this type of Will.
The property of a person who passes away without leaving a Will is dispersed to the surviving family members in accordance with the law of succession (for example, estate of Hindu will be distributed in accordance with the Hindu Succession Act, estate of Muslim will be distributed in accordance with Muslim Personal Laws.). This situation is referred to legally as "dying intestate." A will prevents intestate succession and significantly lowers the likelihood of legal action and enduring animosity among family members. It offers the option for the legitimate owners to take advantage of their inheritance. Regardless of age, a person should think about making a Will if they own properties.
Here are some of the famous case laws where property was distributed according to the law of succession due to absence of a Will:
Facts: In this case, the plaintiffs and the defendants prayed to the court to hold that they were both co-owners of the suit properties so that they may determine their shares, divide the suit properties according to those shares, and take ownership. The parties said that they were entitled to various ancestral possessions through one Rajaram Balkrishna Raut, who passed away intestate and left behind 8 children (5 boys and 3 daughters) and a number of grandkids. The parties to the lawsuit were Rajaram's children and his grandchildren.
Analysis: With reference to rights in coparcenary property and Hindu Undivided Family properties, the Hindu Succession Act, 1956 has changed its position. The Court determined that contrary to Section 8 of the Hindu Succession Act, 1956 (“HSA”) which talks about survivorship, the rights in the ancestral property that belonged to the coparcener after his or her death passed to his or her sons and daughters through the testamentary succession. (After the 2005 amendment). Before the Amendment, daughters and other female relatives were not regarded as heirs but they now have the status of coparceners and are equally entitled to their shares by succeeding in ancestral property.
Ratio decidendi: All of the deceased's ancestral and joint family property would not pass to his sons as sole heirs, but other legal heirs would also receive a share.
Facts: Jagannath Singh, the grandfather of the appellant/plaintiff, had passed away in 1973. He was survived by his spouse Mainabai, four children, one of whom was the father of the appellant. After his grandfather passed away in 1977, the appellant was born. To separate his 1/8th interest in the joint family property, the appellant sought partition. The appellant filed a lawsuit against his father and three of his father's brothers (Respondents).
Analysis: When a male Hindu who had an interest in Mitakshara co-parcenary property died intestate following the implementation of Hindu Succession Act, 1956 (“HSA”), leaving behind a Class 1 female heir (his widow in this instance) and sons, by operation of S. 6's proviso, the deceased's interest in co-parcenary property would pass by intestate succession under S. 8, not by survivorship under S. 6. Joint family property would cease to be joint family property after devolution under S. 8 of the HSA upon the death of a male Hindu intestate, and the said female heir and other coparceners succeeding to the same would hold their respective shares in property as tenants-in-common and not as joint tenants.
Ratio decidendi: Therefore, a grandchild who was born after the Hindu male's death cannot file a partition suit and claim his share of the alleged joint family property.
Facts: The previous owner of the land passed away intestate, leaving a widow and three daughters, all of whom had already pre-deceased their mother. Later, the widow adopted the appellant. The son of the second daughter then filed a partition lawsuit.
Analysis: Due to proviso (c) to Section 12 of the Hindu Adoptions and Maintenance Act, the later adoption of the appellant would not affect the possessions that had become vested in the widow and her three daughters upon the death of their husband/father. As a result, the widow had acquired full ownership of the share, and her second daughter—the mother of the plaintiff-respondent—had acquired full ownership of the portion of the original owner's possessions. Adopted son and the heirs of the widow's three deceased daughters would each receive a portion of the widow's portion after she passed away intestate. In addition to his three sisters and his mother's assets, the plaintiff-respondent would also receive a portion of his grandmother's assets.
Ratio decidendi: As originally planned, her adopted son and the heirs of her deceased daughters would inherit her half of the widow's original 14th share of her husband's property. The appellant would receive a 1/16th portion of the suit property, while the plaintiff would receive a 1/64th share of the suit property plus a 1/16th piece of the mother's property.
Facts: Dr. B.C. Singh and his wife, Dr. S.L. Singh purchased immovable property. Later, Dr. S.L. Singh passed away intestate. They were Christians and hence, Hindu succession act would not be applicable. S.L. Singh acquainted J.M. Utarid in 1968, and J.M. Utarid moved onto that property at that time. Dr. B.C. Singh asked J.M. Utarid and his children to leave after a while, but they refused to leave the area in question. When Dr. B.C. Singh filed the lawsuit to obtain the property, the J.M. Utarid made a written statement claiming that the plaintiff is not the only owner of the property. They claimed that the late Dr. S.L. Singh was related to them and when she passed away, defendant No. 1, a distant relative, received a 1/4 interest in the entire property. As a result, neither the plaintiff's claim for damages nor a change of possession of the property was valid.
Analysis: The distribution guidelines follow the Sections 42 to 48 of the Indian Succession Act's priority order (Rule of Exclusion). The Act's structure makes it apparent that the nearer kindred exclude the distant kindred when an intestate leaves no lineal descendants but only kindred. Given that the intestate has left behind her real sister, the first defendant, albeit being distantly related, is not entitled to any share of the property. The intestate in this case has left her husband and relatives in her wake. Lineal descendants as defined by Section 25 do not exist.
Ratio decidendi: When an intestate dies without leaving behind children or distant lineal descendants, the rules of distribution are outlined in Sections 42 to 48, and they are prioritized in that order. The respondents' claim that they are entitled to a 1/4th part of the property has no merit.
As per the laws, registration of Will is not mandatory and its completely optional, however, if a Will is registered, the ground for challenging the Will gets reduced because registering a Will requires a personal visit to the registrar's office, interaction with the registrar, and taking a photo of the testator and witnesses. This reduces the likelihood that a Will might be challenged on common grounds like soundness of mind, forgery, and coerced drafting.
A Will must be signed by at least 2 (two) witness. Getting Will signed by at least 2 (two) witnesses is one of the most essential elements of a Will and the witnesses shall be ethical, trustworthy and ideally shall not be the beneficiary to the Will. The simultaneous presence of both the witnesses at the time of signing the Will is not mandatory, but it shall be insured that the witnesses sign the Will in the presence of testator.
The registration of a Will does not require payment of stamp duty. However, each state has a different registration price that you might need to pay at the registering the Will. Therefore, depending on where you are registering the Will, the registration fee might differ.
A Will is a flexible document since it doesn't take effect until the testator dies. There is no restriction on how often a Will may be changed, thus the testator may alter it whenever they like. The testator may revise an existing Will by creating a new Will that includes the required modifications, states that it is the testator's last Will, and revokes any prior Wills and codicils. The new Will may then be executed in the same way as the original Will. If the older Will was already registered, it is advised to always register the revised Will with the office of the Sub-Registrar where the former Will was recorded in order to revoke the validity of the earlier one.
Thus, to conclude, a Will is a written declaration of the intention of the person making the Will i.e., the testator which ensures that the property devolves on the individuals so named. Especially in today’s times when the concept of joint family is slowly and gradually reducing, one can even prefer a person out of the family to inherit his/her property after the death. Having a Will is thus imperative so that the property is divided amongst the individuals so wished. A Will ensures that a person’s property is given to the preferred family member or even a distant person not belonging to the family. It is a great way of planning the devolution of property after the death which not only eliminates the conflicts and issues as to who will inherit after the death but also ensures the distribution of the property as per the wishes of the owner.
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