Himanil Raina from NALSAR Hyderabad covers a few things about law of wills in India that everyone needs to know. Over to him.

Want to create a will? Make sure you know this first

This is the first of a series of posts casting a roving look over the Law of Wills as prevalent in India in a simple and concise manner. This particular article deals with the understanding of what a will is and the manner in which a will is made while addressing certain basic questions about who can make a will, the beneficiaries under a will and the kind of property that can be disposed of in a will.

UNDERSTANDING WHAT A WILL IS

A fundamental characteristic of property is that it cannot be without an owner. On a person’s death his property has to vest into someone and the act of transmission of the property is referred to as succession. The law of succession is divisible into two parts testamentary and intestate succession. When a person makes a will disposing of his property it is governed by the law of testamentary succession. In cases where a will has not been made then the law of intestate succession kicks in and his property is acquired by his heirs as per intestate law. This piece is concerned with wills and hence only testamentary succession (which means succession by will) shall be examined.

A will is a legal declaration for a voluntary posthumous disposition of property.The law relating to wills may be found in the Indian Succession Act, (ISA) 1925 where Section 58 states the law therein applies to everyone except Muslims. The essential characteristics of a will are:

1. There must be an intention for the testament to take effect after the testator’s death;
2. It is the a legal declaration of intention with respect to property (the declaration is not fulfilled if the forms and formalities prescribed by the law and not fulfilled);
3. The declaration with respect to the property must involve a disposition of property and not the mere appointment of a successor;
4. A will can be altered or revoked by the testator at any point of time in his lifetime. This can be done means of an instrument called a codicil (This means that a contract holding a particular will to be a last will or preventing it from being revocable is invalid).

A testator can chose to appoint an executor (a person to whom the responsibility of the execution of the will is assigned) failing which an administrator can be appointed by a competent authority (to administer the deceased persons estate).

WHO CAN MAKE A WILL

Section 59 of the Indian Succession Act provides that any person of sound mind who is not a minor can make a will. The idea is that a person is understood to be capable of being a will if he has the capacity to understand what is written in it and comprehend the nature & effect of the disposition. The burden of proving that the maker of a will did so freely and when capable of making the will is upon the individual who propounds the will. If a person is normally insane but has fits of insanity at times and a will is made when sound of mind then the will would be valid. A minor is any person subject to the Indian Minority Act, 1875.

BENEFICIARIES TO A WILL & PROPERTY CAPABLE OF DISPOSITION

Any person who is capable of holding property can be a will’s beneficiary. This means that even a corporation, a juristic person, minors and someone of unsound mind can be a beneficiary of a will. With regard to property that can be disposed of by a will there are no restrictions save that the testator must be capable of disposing of the property. This means that the property in question must be self acquired property. As concerns ancestral property Section 30 of the Hindu Succession Act allows a Hindu to give away in his will his share in coparcenary property which is something that a Hindu is in other circumstances not permitted to do.

THE MAKING OF A WILL

The Indian Succession Act recognizes two types of wills, unprivileged and privileged wills. Privileged wills are those that can be made my members of the armed forces employed in an expedition or engaged in actual warfare and can be made in oral form as well. A relaxation of formalities has been envisaged for them considering the inherent dangers and possibility of sudden death coupled with the lack of time and means to deliberately frame written wills. Unprivileged wills are the wills that can be created by every person other than those who can create a privileged will. For a privileged will to be executed it is firstly necessary that it be in writing. The law requires no particular form except that the words must be intelligible and clear. The testator is required to sign or affix his mark on the will or have it signed by another person in his presence or on his direction. Two or more witnesses to the fact of the testator’s assent being expressed by placing of a mark on the will are required.  Section 18 of the Registration Act requires that it is not mandatory for a will to be registered neither is there a need for the will to be on a stamp paper. Any attempts by a person propounding a will which was made by oral means has to be strictly proved on very satisfactory evidence as the burden of establishing an oral will is a very high one.

 Guest post by: Himanil Raina from NALSAR, Hyderabad.