Smooth Inheritance: Where There's A Will There's A Way

Smooth Inheritance: Where There's A Will There's A Way

Smooth Inheritance: Where There's A Will There's A Way
Section 2(H) of the Indian Succession Act 1925 defines will as “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. (Flickr)

Making a will is the most important tool for succession planning and it is necessary for all of us to get it made in our lifetimes. Absence of a will in most cases results in nothing but bad blood among legal heirs.

What is a will?

A will is a legal declaration made by a person about his assets and comes into effect after his demise. This document not only helps avoid unnecessary family squabbles over property and other assets but also lets you distribute your property at your own prerogative with minimal interference of law. Section 2(H) of the Indian Succession Act 1925 defines 'will' as “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. It also states that a will is accepted for the purpose of all testamentary successions in the country. The Indian Succession Act, 1925, applies to Hindus, Parsis, Christians, Buddhists, Jains and Sikhs in India.

By making a will, you can determine how you want your property to be inherited by your family. Whereas, if a will is not made, the property will be divided according to the law of the religion you follow. This means the Indian Succession Act, Hindu Succession Act, Muslim Personal Law, etc., would be applicable to the properties belonging to the deceased.

To encourage the practice of will-making, authorities have kept the procedure simple. A valid will can be formed by a person even by writing his intention on a plain sheet of paper in the presence of two witnesses. The testator should sign on all the pages of the will.

What makes a valid will?

  • The person making the will should be a major i.e. above 18 years of age according to the Indian Majority Act and above 21 years in case the court has appointed a guardian for him.
  • The person should be of sound mind and should be in a position to understand what he is doing while creating a will. Insane people can make a will in the interval of sanity. Even an old, ill, deaf and dumb people can make a will, if they are in a position to appreciate the consequences of their actions.
  • The will should be executed without any coercion, undue influence, fraud, misrepresentation or mistake of the person making the will.
  • The person should sign the will in the presence of two witnesses. These witnesses are also required to sign the will.

Types of will

Privileged wills: A privileged will can be made by soldiers, airmen, navy people and marines during the course of their employment. Considering that the nature of their jobs might now allow them to comply with all the formalities, this working segment enjoys flexible norms.

Unprivileged wills: All wills made under Section 63 of the Indian Succession Act, 1925, are called unprivileged wills. Wills executed by people other than a soldier, airman or mariner are known as unprivileged wills. An unprivileged will has to be signed by the testator in the presence of two witnesses.

How important is registration of a will

While it is not compulsory to register a will, it is better to do so to ensure authenticity. Under Section 42 of the Registration Act, 1908, you don't have to pay a stamp duty for will registration; only a nominal amount is charged in the form of a registration fee (generally Rs 500). The registered will is placed in the custody of the registrar and, therefore, cannot be tampered with, destroyed, mutilated or stolen. While one has to visit the Registrar's Office to get ones will registered, the registrar could pay a visit to the testator in case the person is immobile due to old age or a medical condition.

Deposit of a will

You should not confuse the will deposit with will registration. When you deposit a will, the original copy stays with the Registrar and you are given a receipt. When a need arises to collect the original will, you one can collect it from the registrar by producing this receipt. Deposit of a will is not popular and most people prefer to register their will.

How to register your will in India?

A person making the will can get the desired content typed on a plain sheet of paper and carry photocopies of the same, along with his identity proof. Along with two witnesses, the person should approach the Registrar's Office. After the registration process is complete, a slip would be issued. Using this slip, one can obtain a copy of the registered will from the office after a couple of days. The document would have the registry details using which a copy of the will can be obtained from the Registrar's Office in case the original will is lost.

However, it must be noted that once a registered will has been made, any subsequent will made should also be registered to be effective.

How to revoke a will? 

A person can revoke a will anytime during his lifetime. A will can be changed, revoked or altered by making a new will. In the new will, an explicit revocation of all the earlier wills can be done. A will can also be revoked by just destroying it, if it is unregistered.  Besides, if any minor changes are required in the will, a codicil can also be made.

What is a codicil?

A codicil is considered to be a part and an extension of a will. A codicil is made in the same manner in which the will was made. For instance, if the will was registered, the codicil needs to be registered, too. However, if there are numerous changes made, it is better to have a new will made instead of many codicils to eliminate any chances of confusion.

Nominee versus legal heir

It is advisable to make a will even if you have no immovable assets, and have nominees for all your other assets. Remember, that a nominee is not the legal heir or the ultimate beneficial owner of your assets. A legal heir is eventually the owner of the assets and the nominee holds the property in trust.

Why should young people also have a will?

A popular belief is that succession planning is only for senior citizens. However, it is advisable that people of all age groups make it. For instance, in the event of a person and his spouse's death, the court appoints a guardian, if you have not made a will for the same. A will is crucial for cases like these.

How does a will come into effect?

A will becomes effective after the death of the testator. A will should preferably appoint an executor who could proceed with the implementation of the will.

Executor: An executor is a person who has been appointed to administer the estate of the deceased person. A beneficiary of the will can also be appointed as an executor in the will.

If the will is acceptable to all the legal heirs and no one has any objection, the contents of the will can be made applicable. A No-Objection Certificate can be taken from all the parties concerned. Thereafter, authorities would give effect to the will and the assets could be transferred in the name of the beneficiaries in government records. In case a will is challenged, one will have to approach the court to settle the dispute.

Below mentioned documents can be obtained from the court of competent jurisdiction enforcing the original will.

Probate: A certified copy of the will along with a certificate granted under the seal of a court of competent jurisdiction. It is a conclusive proof of the authenticity and validity of a will. It also establishes the legal position of the executor.

Letter of administration: A letter of administration is granted instead of probate in case the will does not name any executor. It can be granted to any beneficiary mentioned in the will.

Thus, the original will can be implemented by procuring the above mentioned documents in case of any objection. The beneficiaries should apply to the municipal corporation, local development authority, banks, insurance company, etc., with a copy of the will so that their name can be registered or benefits could be released in their favour.

Gifting of assets or transferring them to relatives during one's lifetime would incur taxation liability and regulatory fees. So, instead of paying a stamp duty, income tax, etc., it would be better to transfer the assets through inheritance by means of a will.


Last Updated: Fri Jun 14 2019

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