Probate of Will, Drafting of Will & Registration
Wills Under Indian Succession Act, 1925
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. It is a unilateral document and takes effect after the death of the person making it. It can be revoked or altered by the maker of it at any time he is competent to dispose of his property.
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.
Who can make a will
- Every person who is of sound mind and is not a minor can make a will.
- Persons who are deaf or dumb or blind can make a will provided 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.
- No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
Execution of A Will
Every person, not being a soldier employed in an expedition or engaged in warfare, or an airman so employed or engaged, or a marine at sea shall execute his will accordingly.
- He shall sign or fix his mark to the will or it shall be signed by some other person in his presence and by his direction
- The signature or mark should be so placed that it shall appear that it was intended thereby to give effect to the writing as a will
- The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark on the will or Has seen some other person sign the will, in the presence and by the direction of the testator or Has received from the testator a personal acknowledgement of his signature or mark, or of the signature such other person;
Each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witnesses be present at the same time, and no particular form of attestation is necessary.
- Declaration of intention.
WHAT PROPERTY CAN BE DISPOSED BY A WILL
Any movable or immovable property can be disposed of by a will by its owner.
Beneficiary Under A Will
Any person capable of holding property can be devisee under a will and therefore a minor, lunatic, a corporation, a Hindu deity or any other juristic person can be a devisee.
The Indian Succession Act imposes restrictions in certain cases.
- Transfer to person by particular description, who is not in existence at testator's death.
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.
For example, If A bequests 1000 rupees to the eldest son of B. At the death of A, the testator, B has no son. The bequest is void.
- Transfer to person not in existence at testator's death subject to prior bequest.
Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing be queathed.
For example, If property is bequeathed to A for life, and after his death to his eldest son for life, and after the later's death to his eldest son. At the time of the testator's death, A has no son. Here the bequest to A's eldest son is a bequest to a person not in existence at the testators death. It is not a bequest of the whole interest that remains to the testator. The bequest to A's eldest son for life is void.
- Transfer made to create perpetuity.
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.
For example, A fund is given to A for his life and after his death to B for his life; and after B's death to such of the sons of B as shall first attain the age of 25. A and B survive the testator. The son of B who shall first attain the age of 25 may be a son born after the death of the testator; and such son may not attain age of 25 until more than 18 years have elapsed from the death of and B. The vesting of fund may thus be delayed beyond the lifetime of A and B and the minority of the sons of B. The bequest after B's death is void.
- Transfer to a class some of whom may come under above rules.
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 fund is bequeathed to A for life, and after his death to all his children who shall attain the age of 25. A survives the testator, and has some children living at the testator's death. Each child of A's living at the testator's death must attain the age of 25 (if at all) within the limits allowed for a bequest. But A may have children after the testator's decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after the decease of A. the bequest to A's children, therefore, is inoperative as to any child born after the testator's death; and in regard to those who do not attain the age of 25 within 18 years after A' death, but is operative in regard to the other children of A.
- Transfer to take effect on failure of prior Transfer.
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.
A fund is bequeathed to A for his life, and after his death to such of his sons and shall first attain the age of 25, for his life, and after the decease of such son to B. A and B survive the testator. The bequest to B is intended to take effect after the bequest to such of the sons of A as shall first attain the age of 25.The bequest to B is void.
- Effect of direction for accumulation.
Where the terms of a will direct that the income arising from any property shall be accumulation either wholly or in part during any period longer than a period of eighteen years from the death of the testator, such direction shall, save as hereinafter provided be void to the extent to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.
However, this will not affect any direction for accumulation for the purpose of-
- The payment of the debts of the testator or any other person taking any interest under the will; or
- The provision of portions for children or remoter issue of the testator or of any other person taking any interest under the will; or
The preservation or maintenance of any property bequeathed; and such direction may be made accordingly. This rule provides that accumulation of income arising from any property bequeathed should come to an end or be determinable on the beneficiaries attaining vested interests within the perpetuity period. If the direction in the will for accumulation exceeds 18 years, the direction will be void to the extent of the period which exceeds 18 years. At the end of 18 years, the property and the income will be payable as per directions in the will. However, this rule is not applicable where the direction in a will is for the purposes of payment of the testator's debts or of any other person taking interest under the will or for the raising portion for any child, children or remoter issue of the testator or for preserving or maintaining houses and tenements or charity.
Revocation of a will/Loss of a will
A will can be revoked in the following manner
- By execution of a subsequent will
- By some writing and declaring an intention to revoke the will
By burning of the will
- By tearing of the will
- Otherwise destroying the will
When a will is evoked by a subsequent will, the will so revoked will have no operation
LOSS OF A WILL
If a will is lost it will be presumed to be revoked. If the will was seen with the testator, but could not be found after the death testator, it will be presumed that the same has been revoked by the testator by destroying the same.
The registration of a will is not compulsory. However, the testator may register the will or deposit the will in a sealed cover with the Registrar. There is no time limit for registration.
WILL IN FAVOUR OF WIFE AND CHILDREN
I -........, son of Shri ..............-, resident of ......................., declare this to be my last will.
I, hereby appoint Shri ................, as the executor and trustee of this will.
I devise and bequeath to my wife Smt .................my house bearing No. ................ situated on..........., city............... and more particularly described in the schedule I hereto, with full rights and powers of disposal.
I devise and bequest upon my son my flat bearing No ..............., situated at .............., more particularly described in Schedule II, with full rights and powers of disposal.
I devise and bequeath upon my daughter Smt ...................., the shares, debentures, securities and fixed deposit mentioned in Schedule III.
In witness whereof I the abovenamed ...................have signed this will on the_ day of........... 200...
Signed by the abovenamed ............... in our presence, who in his presence, have hereunto subscribed our names and as witnesses.