This article is written by Vaishali Jeswani, from HNLU, Raipur.
Table of Contents
Introduction
What is a will? In legal Parlance, Will is a legal declaration in the form of a document and in certain cases oral in which the owner of the property/Asset/Shares or Something of value transfers it to somebody else or in other words makes the other person owner of the estate (property). Failure to prepare a will might leave your family and friends in trouble, other than the fact that you lose your right to distribute your estate on your terms and as per your wishes; issues arise in your family after you die intestate (without a will). The court and the state deal with your estate in the absence of a Will, which might not be so smooth.
In a world of predetermined notions, a person can prepare a will himself after adhering to the prescribed format and other requirements of the state or he can approach an attorney for the same. A person doesn’t need to approach an attorney; with the help of various softwares available at one’s fingerprints, it’s possible to get the task done by oneself.
It’s advised that a person reviews his/her will every two or three years, just in case some additions or alterations are required. Over some time after a person makes a will, he might acquire additional property or loses some, some family dispute arises or the beneficiaries predecease the person; under all such situations reviewing the will helps.
Testamentary will– It is the most popular type of will. It is written and signed by the testator and witnesses. The occurrence of any successful challenge is the least in this type of will.
Holographic will– Holograph, which generally means hand-written by the author. Such a will is signed by the testator but not witnesses. When there is no time left with the person to call for a witness, recourse to this type is taken. Absence of witness leads to challenges in such a case. Also, the authenticity of the will needs to be proved.
Mutual Will– Such a will is preferred by a married couple. When one person dies, the other spouse is bound by the deceased spouse’s wishes. This protects the interest of the deceased spouse and his children’s interest, in case a new spouse comes in. It need not be confused with a joint will.
Oral will– The testator in presence of witnesses speaks the will. It is the least recognized type and is troublesome for the relatives.
A living will– People often ignore the importance of a living will, it might not be very useful once the person dies but it takes care of the person himself when alive. It includes the way he and his affairs are to be dealt with in case he becomes incapable. For example, if he should be kept on a life support system or not. It does not deal with the distribution of Assets.
Why is will making important in the time of COVID-19? Coronavirus, an infectious disease caused by a new virus, with symptoms such as cough, fever, difficulty in breathing; which has taken a toll on the world is killing thousands of people every day. With such an eventuality around us, making a will becomes important. Will, as we already know deals with the estate after one dies. In these hard times, when the virus is evitable and there seems to be no definite cure of the deadly Coronavirus, it becomes essential for a person to think about his property and his family. A properly documented will helps your family settle disputes smoothly without intervention from the state. In the absence of the same, it will be dealt with by the state according to the laws of the state.
Succession Laws in India
The succession laws tell how the property of a person is to be dealt with, how a person can transfer the property etc. It usually comes into picture when a person dies intestate. What category of persons are entitled to the benefit and what percentage of share they can get are the type of issues the law deals with. A will, on the other hand, is a legal declaration specifying the mode of disposal of property. It can be made during the lifetime of a person. There is no restriction on the number of times a will can be made, but only the last will is taken into account for the purpose. A will becomes enforceable only when the testator dies.
INDIAN SUCCESSION ACT, 1956 governs any Hindu, Sikh, Jain and Buddhist. Muslims are not included and are governed by Mohammedan laws. Christians, Parsi and Jews are governed by the Indian Succession Act, 1925.
WHO CAN MAKE A WILL– The Indian Succession Act provides that any person who is of sound mind provided that he is not a minor can make a will, a person who is deaf, dumb or blind can make a will as well but he needs to know the nature of the act being performed. A person who is ordinarily of unsound mind and rarely of sound mind may make a will when he is of sound mind, any person who is intoxicated or cannot understand what he is doing because of any other cause cannot make a will.
EXECUTION– The Testator of a will needs to sign the will or make some other person sign for him at his direction, two witnesses need to sign the will in both the cases in front of the testator. The signature or the mark shall appear to be validly given for the purpose. Soldiers on duty, marine at sea, airmen are exempted in this regard.
TYPE OF PROPERTY AND WHO CAN HOLD THE SAME– Any movable or immovable property can be disposed of in favour of a person who is capable of holding the property. Therefore, a minor, a corporation, a lunatic, a Hindu deity can be the beneficiary.
RESTRICTIONS– The Act also provides for certain restrictions in this regard-
- If a person transfers his property to someone qualifying a particular description and who is not in existence at the time of the testator’s death, such a bequest is void. When a bequest is made in favour of a person not in existence, subject to a prior bequest in favour of a living person; the latter should be void.
- 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, X fund is given to A for his life and after he died 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 the age of 25 until more than 18 years have elapsed from the death of and B. The vesting of the 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.
- In case a will is made in favour of a class some of whom are not eligible as per the above mentioned rules, the same will be void for those people only and not the others.
- As per the rules contained in section 113 and 114 of the act, if a will drafted in favour of such person or class of persons is considered as void; any bequest contained in the same will intended to take effect after the prior bequest, is also void.
REVOCATION– The revocation of a will can be possible by making a new will, by declaring the intention to revoke the will, by burning or tearing, by any other means which destroys the will. The old will lose its operation when a new will comes into the picture. In case, the will is lost it is presumed to be revoked; if the same was last seen with the testator and cannot be found after his death, it is presumed that it has been revoked by the testator.
CODICIL– A person has the choice to either make a new will or make smaller changes by way of a codicil. A codicil is a kind of instrument or way provided by the law to make changes in case the person does not wish to change the entire will. In cases where a person opts for a codicil, witness signature is necessary because these codicils have the power to change the will.
REGISTRATION– Registration of a will is optional and not compulsory. But it is advised to get it registered if the unregistered will get lost or damaged, there is no way it can be traced which again will give rise to various problems.
COMPONENTS– The will needs to be unambiguous and to the point.
- If more than one property is there each one of it needs to be dealt with separately.
- It needs to include details about the person, his married life, children.
- Debts and taxes need to be mentioned and how they should be paid; what assets should be used for payment.
- Name and powers of the executor or trustee should be mentioned to carry out tasks smoothly.
- Mention of a guardian in case the person has a minor child is necessary too.
What happens when a person dies intestate?
When a person dies without making a will, he dies intestate. The property when left without any beneficiary is dealt with by the laws, the deceased person loses his right to give away the property as per his wishes. Thus, if a person wishes that his hard-earned property be distributed as per his desires; he better makes a will. Under the Indian Succession Act, both the Hindu man and woman get the right to transfer their property.
HINDU MALE– In case a Hindu Male dies without making a will, his property is transferred to class 1 heirs and in their absence, to class 2 heirs. If both class 1 and class 2 heirs are absent then to agnates and cognates of the deceased. Agnates are preferred over cognates; agnates are persons related through male either by blood or adoption. Cognates are person-related through females either by blood or adoption.
HINDU FEMALE– If a Hindu woman dies without making a will there’s a hierarchy which is followed. i.e. In absence of one another gets the estate;
- The property goes to her children and husband.
- To husbands’ heirs.
- To her mother and father.
- To Father’s heirs.
- To Mothers heirs.
Conclusion
Will holds prominence in a person’s life, as the destiny of the hard-earned wealth of a person depends wholly on that single declaration. If he doesn’t make a will, he loses one of his most important rights and the desires he might be having in regards to his property distribution goes futile. There have been instances when the family of the deceased faces the state and the court when the will gets challenged by relatives in case it’s not properly drafted or not drafted at all. In a country like India, where a huge population resides; people seem to be ignorant when it comes to will-making. Now, when the whole world faces the pandemic COVID-19, which is spreading like fire in the forest and there seems to be no cure for now; we must know the importance of a will. All the lawyers and people aware about the subject shall urge the people around them to draft a will themselves or contact a lawyer for the purpose.
References
- https://www.nolo.com/legal-encyclopedia/what-is-will.html
- https://www.investopedia.com/articles/pf/08/what-is-a-will.asp
- https://www.investopedia.com/articles/pf/08/what-is-a-will.asp
- https://www.schomerlawgroup.com/blog/estate-planning/4-types-of-wills-and-what-they-should-include/
- https://www.who.int/health-topics/coronavirus
- http://districtcourtsnamchi.nic.in/laws/indian_succession_act_1925.pdf
- http://www.helplinelaw.com/real-estate-wills-probate-and-trust/WISA/wills-under-indian-succession-act-1925.html
- https://www.ashmorelaw.com/library/the-10-must-have-parts-of-a-will.cfm
- http://english.oxforddictionaries.com/intestate
- http://www.shareyouressays.com/knowledge/meaning-of-agnates-and-cognates-under-the-hindu-succession-act-1956/117943
- http://www.networkfp.com/how-hindu-succession-law-applies-when-a-person-dies-without-will/
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