Wills in India

Last Updated at: October 22, 2019
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A will is a legal declaration a person makes about the way they want their property managed or distributed after their death. Although a will is a legal document, there isn’t any prescribed form it must take. For instance, you don’t need to write a will on stamp paper and it can be either typed or handwritten. However, a handwritten will is preferred as it is more difficult to refute. According to the Indian Succession Act of 1925, anyone who is of sound mind and who is not a minor can make a will.

Essential Elements of a Will

While a will need not be in a prescribed form, it’s good practice to follow a certain pattern so that everything necessary by law is included, making your will simpler, more solid and difficult to contest. Your will should have these basic things:

Declaration: You should start your will by declaring that you are of sound mind and stating who you would like to be executor of your will. If this isn’t your first will, you should make a statement revoking all previous wills and codicils.

List of your Assets: Next you should list out all your assets. This should include any property you own, the money you have in your savings accounts, fixed deposits and mutual funds. Compiling this list can be time consuming and tedious. It’s best to go over it a few times to make sure you haven’t left anything out.

Drafting your Will with vakilsearch

Divide your Assets: List out clearly who is to receive which assets. Going item-wise may remove any ambiguity. If you wish to give your assets to a minor, don’t forget to appoint a custodian of the assets. It’s important to select someone you trust as a custodian.

Sign the will and involve witnesses: You have to sign your will in the presence of two witnesses. Your witnesses will then have to sign to certify that the will was signed in their presence. It is here that the will should be dated, and you should specify the full names and addresses of your witnesses. Remember: your witnesses don’t need to read your will. They just need to attest to the fact that you’ve signed it in their presence.

Initial each page: After this, the date and place must also be written at the bottom of the will. Every page of the will needs to be signed by you and your witnesses. Any correction made on the will must also be countersigned by you and the witnesses.

Storing the will: Make sure you store your will in a safe place. Copies, if made, should be stored separately from the original will.

Common Mistakes while Writing a Will

Avoid using complicated or technical legal terms: Many people like using legal terms while drafting such documents. This can get very confusing and often the layman is left puzzled by what is written. So, to avoid any confusion, make sure the language you use to draft the will is simple and precise.

Try to avoid allotting tenancy rights: People, especially those who have been tenants for many generations, often pass on their tenancy, though it isn’t legal to do so. This is a common mistake and there are many court cases regarding this issue. You cannot state in your will that a relative should become the tenant of the property, since you do not have any right to the property.

Update your will: Update your will if your estate changes because of assets bought or sold.

FAQs about Wills

When can a will be challenged?
A will is generally challenged by a person’s heirs if they are not satisfied with the shares allotted to them. The common grounds for challenge are that the testator was not of a sound mind at the time of writing the will. Hence, it is pertinent to make the will specific regarding the apportionment of property.

Do I need to make any changes to the will while updating it?
While making a will, a person must revoke his earlier will and declare himself to be of sound mind. In case he is willing to deprive any of his heirs from the property, it is better that he gives reasons for this. A will can be revoked or modified by the testator during his lifetime as many times as he wishes to. However, it is necessary to get the alteration or modification registered if the first will was registered. Codicil is an instrument made in relation to a will, explaining, altering or adding to its dispositions and is deemed to be a part of the will.

Who gets my assets if I die without leaving a will?
If there is no will, the property will be distributed according to the personal law of the deceased. The Indian Succession Act is diverse and states different laws of inheritance for different communities. For example, if a Hindu male passes away without leaving a will, the wife and children (including the daughters) share the inheritance. In this category there are further divisions. The testators personal law will govern what happens. If a Muslim male dies without leaving a will, at least two-thirds of his property must be divided among family members. A Muslim wife cannot be dispossessed – the widow gets a definite share. However, the children do not get an equal share. According to Muslim law the sons get twice the share of the daughters. It is best to contact a lawyer if left without a will.

Jargon, explained

Legal terms can be confusing. Here are a few simple ones to keep in mind when considering a will.

Intestate: This is when a person dies without leaving behind a valid will. There are laws governing intestacy to determine how your assets are to be distributed which will differ depending on your religion.

Testator: A person who makes and executes a will is called a testator.

Beneficiary/Legatee: A person or organisation whom you name in your will to whom you give your assets.

Executors: The people you name to handle the division of your assets. You can have up to four executors. It’s generally best to name more than one executor, in case one passes away.

Probate: The legal document to be obtained by the executors after your death giving them the authority to handle your assets.

Administrator: A person who deals with the division of your assets if you haven’t left behind a will.

Codicil: A legal document which amends or adds to a will. For a codicil to be valid, it has to be written and executed in the same way as the will it amends.

When is a Will Invalid?

The burden of proving a will to be valid is upon the party putting forward the will. The will must satisfy the conscience of the court that it is the last will of a free and capable testator. Now, who is a free and capable testator? What disqualifies a person from making a valid will? Let’s find out:

Every person of sound mind, not being a minor, may, of his/her own volition, dispose his/her property through a will. So this means that, a will is valid if:

Sound Mind: The person creating the will should be of completely sound mind at the time of writing it. Therefore, a lunatic or idiot can never create a will. However, a person, let’s say with Alzheimer’s, may create a will in case he/she is lucid at the time of writing it. On the other hand, a completely sane person cannot have created a valid will if he/she was inebriated at the time of its creation.

Only Majors: A minor (a person below the age of 18) cannot make a will in India. A testementary guardian is appointed to dispose the property of a minor.

Of Own volition: If a will is attained through coercion, it is invalid. This means that, should a son or daughter force (by being mentally or physically coercive), their parents into writing a will in their favour, it is invalid.

Only Own Property: A will can be made by any person, and it is often made in the absence of a lawyer. For this reason, many people end up distributing even assets that don’t completely belong to them. A wife may dispose a house that is in the name of her husband, for example. This creates problems.

Intestate Succession

Unfortunately, not everyone bothers to make a will. This may be for a variety of legitimate reasons or, more probably, neglect, but a death intestate is a situation that exists merely on account of the lack of a simple declaration. Intestacy has the potential to create legal disputes between family members. In case of such a dispute, the law has also laid out rules for members of different religions, as specified in Indian Succession Act, 1925, Hindu Succession Act, 1956, and by Shariat law, and these are to be followed. Here is how the property will be divided, should it reach the courts:

Male Hindu (covered under Hindu Succession Act; also includes Sikhs, Buddhists and Jains)
1.First, the property will devolve upon relatives specified in Class I;
2.If there is no Class I heir, then upon Class II relatives;
3.In case there’s no Classs II heir, then upon agnates (those related to another wholly through males, whether by blood or adoption, are agnates) and;
4.If there is no agnate, then upon the cognates (related, by blood or adoption, but not wholly through males).

Female Hindu
1.First, the property will devolve upon sons and daughters (including the children of any predeceased son or daughter) and the husband in equal measure;
2.Secondly, upon the husband’s heirs;
3.If the husband has no heirs, then upon the parents;
4.Upon the heirs of the father;
5.Lastly, upon the heirs of the mother.

However, any property a female Hindu inherits from her parents shall devolve, in case she has no children (including the children of any predeceased son or daughter), upon the heirs of the father. Similarly, property inherited from in-laws shall go to the in-laws’ heirs if she dies without children or grandchildren.

Christians (covered under Indian Succession Act)
1.A third of the property shall go to the wife and the rest will be divided equally among children (including the children of any predeceased son or daughter);
2.If there is no wife, the property will be divided among the children;
3.If there are no children, the property is shared equally by the wife and the husband’s relatives.
4.Lastly, it will devolve upon the parents of the deceased;

Parsis (covered by Indian Succession Act)
1.Half goes to the wife, the rest to the children;
2.If there is no wife, the property is distributed equally among children;
3.If neither wife nor child survives, the assets go to the parents of the deceased.

Muslims (covered by Shariat)
The qazi (judge ruling according to Islamic religious law) takes the burial expenses and makes a list of the assets of the deceased that need to be distributed among wife and children.

Hindu Undivided Family (HUF; by survivorship):
The property of an HUF devolves by survivorship. If the karta dies, the property devolves upon the surviving members for four generations. Regardless of the fact that the heirs are Hindu, the property will not devolve in accordance with Hindu Succession Act.

However, a Class I male or female relative may make a claim on a share of the property, in which case the property would devolve upon the claimant as provided under the Hindu Succession Act.

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