This article is written by Ishan Arun Mudbidri, from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the difference between gift and will.
Gifts and wills both are certain documents that are used while transferring some property from one person to another. Although both these documents are used for similar purposes, they are different from each other. A gift is more or less an immediate process that does not take much time to prepare whereas a will is more of a thoughtful process that takes a longer time.
Concept of gift
A gift in its general sense means a form of reward or a token of appreciation given at weddings, birthday parties, etc. In terms of law, however, a gift is considered as a transfer of ownership of property from one person to another.
Provisions of a valid gift under Transfer of Property Act, 1882
All the provisions of a gift are mentioned in the Transfer of Property Act, 1882. According to Section 122 of the Act, a gift is a transfer of movable or immovable property which is existing. These transfers should have valid consideration and must be done voluntarily.
Essentials of a valid gift
There should be a donor and donee
The person who transfers the gift is called the donor and the person who accepts the gift is called the donee. The donor should be a competent person and should have the capacity to enter into a contract. Whereas, the donee need not be competent to contract. The donee can also be a minor. A gift made to the general public is invalid but, the donee can be more than one person.
Transfer of ownership
The donor should be the absolute owner of the property and should show interest in the property. The donor should have a right to transfer the property.
Movable or immovable property
The property can be movable, immovable, or of any other kind. However, the only condition is that the property should be an existing property and should fall under Section 5 of the Act while making the gift. A gift of a past or future property shall be deemed void.
Acceptance of the gift
The gift should be accepted by the donee. Without acceptance, the gift shall be deemed void. If the donee is a minor or not competent to contract, then the gift should be accepted by a person on his behalf, for example, a parent.
Transfer without consideration
The gift should be given as gratitude. It should be transferred without any consideration. Any consideration given for the gift will be deemed as an exchange and not a gift. In Padam Chand & Anr. v Lakshmi Devi (2010), the Court held that a gift is a voluntary transfer of property and should be given without any consideration.
Provisions of a valid gift under the Muslim Law
Under Muslim law, a gift is known as Hiba. Hiba is not included in the provisions of the Transfer of Property Act 1882, it is governed by the Muslim Law. The Muslims can divide their property in various ways and one of those ways is through a gift which is known as Hiba. Hiba under Muslim Law is the immediate transfer of property from one person to another without any consideration.
Essentials of a valid gift
In the case of P. Kunheema Umma v. P. Ayissa Umma (1981), the Court held that the valid essentials for an immovable property are, a declaration by the donor, acceptance by the donee, and the transfer of possession from donor to the donee.
A declaration by the donor
There should be an intention from the donor to enter into a gift. The gift can be of any means oral or written. The declaration should not be taken by coercion, threat, etc.
Acceptance by the donee
Under Muslim Law, the non-acceptance of a gift by the donee makes the gift void. If the donee is a minor, then the gift is valid but it should be accepted by a person who is a guardian of the minor. The guardians mentioned under the provisions of the Muslim Law are:
- Father’s executor
- Paternal grandfather
- Paternal grandfather’s executor.
Transfer of possession from donor to the donee
The transfer of Hiba should be from donor to donee. Under Muslim law, as soon as the gift is transferred to the donee and is accepted by the donee, the transfer becomes valid. The delivery of possession can be actual and constructive. The gift will be valid from the date of transfer to the date of acceptance of possession. Registration of transfer under Muslim Law is not necessary.
Types of gifts
The types of gifts are as follows:
Void gifts are those which are used for illegal purposes, made by a person who is incompetent to contract, which is comprised of future as well as existing property, and etc.
Inter vivos is a Latin word that means, while alive. Hence such gifts are given during the existence of the donor.
Onerous gifts are those which are made with an obligation imposed on the donee.
Outright gifts are those, which are free of any kind of restrictions.
Concept of will
A will is a legal document in which a person mentions how he/she is going to distribute the property after death. The Indian Succession Act, 1925, mentions the provisions regarding a valid will.
Provisions for a valid will under the Indian Succession Act, 1925
Section 2(h) of the Indian Succession Act 1925 states that a will is a declaration of the intention of a person with regards to his property, assets. The Act mentions provisions for the Hindus, Buddhists, Jains, and Sikhs. Muslims are governed according to the Mohammedan Law.
Section 59 of the Act mentions that a person who is of a sound mind and has completed 18 years of age can make a will. The Section further states that a person who is occasionally of sound mind or occasionally in an intoxicated state can make a will when he/she is in a sound and sober state respectively.
Section 72 of the Act mentions that the will should be written in such a way, that the intention of the person making the will should be known.
Essentials of a valid will
A will is a legal declaration of the person intending to distribute his/her property. It is not a contract or a settlement.
The intention of the testator
A testator is a person making the will. The will is a declaration of the desires or intention of the person to make the will. The will should be legal. The person making the will should not be threatened or coerced into making a will. This will make the will void and illegal.
With respect to the property
The testator can make a will of his or her own property. The person cannot make a will out of something which he doesn’t have.
Signature and details of beneficiaries
The will should be signed by the testator and the date of the will should also be mentioned. Further, the details of the beneficiaries of the will should also be mentioned.
Property of minor
In case, a minor is a beneficiary, then he/she should appoint a guardian to take care of the property till the minor attains turns 18.
In the case of Gnanambal Ammal v. T. Raju Ayyar (1950), it was held by the Court that the main point of observation while making a will should be, the intention of the testator.
Provisions of a valid will under the Mohammed Law
A will under Muslim law is called Wasiyat. It is not governed by the provisions of the Indian Succession Act. Under Muslim Law, there is a strict rule imposed on making a will. A person is prohibited from making a will for his entire property . A will for only 1/3rd of the total property can be made by a Muslim. The will can be made for anyone. This rule was imposed to honor the word of Prophet Mohammad.
Essentials of a valid will
The capacity of the legator
The legator is the person who makes the will. Hence, such a person should be competent to make a will, of sound mind, should have attained the age of majority, and should be a Muslim to make a will.
The consent of the legator
The person making the will should not be coerced or threatened to make the will.
Competence of legatee
The legatee is the person in whose name the will is made. This person should be capable of holding the property, can be a Muslim or Non-Muslim, and should be alive at the time of making the will.
Acceptance by the legatee.
There should be acceptance and consent of the person in whose name the will is made. The acceptance can be expressed or implied. Expressed acceptance means acceptance where the parties explicitly agree to an offer. Implied acceptance means where the parties have not mentioned their willingness to an offer but it is seen by their actions.
No particular formality is required to prepare a will. The will can be oral, written, or in any other form. In the case of Abdul Manan Khan v Mirtuza Khan (1990), the Court held that no formalities are required while preparing a valid will.
Types of will
The types of wills are as follows:
The types of wills which become on the happening of a certain event or contingent, are known as contingent wills. Such will become void on the non-happening of the event.
Joint wills are those which are prepared by two or more persons.
When a person writes two or more wills, one for the disposal of all the immovable property and the other for the disposal of all the movable property, such wills are known as concurrent wills.
Comparison between gift and will
Now that we have studied about a gift and a will in Hindu and Muslim laws, so what is the difference between the two.
Points of Distinction
A gift requires to be stamped and registered.
A will need not be stamped or registered.
A gift is a transfer of property which is done immediately.
A will is a transfer of property which is done after the death of the person making the will.
A gift deed cannot be revoked. The person to whom a gift is given becomes the absolute owner.
A will can be changed or revoked as long as the person in whose name the will is made, is alive.
A gift comes into effect immediately after it is prepared.
A will comes into effect after the death of the person making the will.
A gift is prepared by any person who is of sound mind and has attained the majority age.
A will is prepared according to the family as it is going to get distributed within the family.
Can both these documents be challenged
A gift can be challenged if it is proved that the gift was not as per the wish of the donor.
A will can be challenged if it is within 12 years from the date of the death of the person.
A will might create disputes among family members who are not mentioned in the will, in such a case a gift deed can be used. Similarly, a gift can be acquired immediately so it cannot be changed in that case, a will is a better option as it is not acquired immediately and can be changed. Hence, both these documents have their own pros and cons and are equally important for transferring the assets. So it is up to the executor to choose between these two.
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