Overview
A “Will” is a legal document by which a person expresses as to how his/her movable/immovable property needs to be transferred/ distributed at death. There are different types of wills and in this blog, we will discuss one of these, namely, the unprivileged will.
What is an Unprivileged Will?
To simplify it for you, we will first let you know what a privileged will is.
A privileged will is one that can be made by a member of the Armed Forces engaged in actual warfare or employed in a certain expedition. It can be created in oral form as well.
An unprivileged will under succession act is one that can be created by any individual other than those who are allowed to make a privileged will. The person creating the will must be of sound mind (should have “testamentary capacity”) and should have attained the age of maturity. Otherwise, the will cannot be enforced. As a will is nothing but a legal declaration, certain conditions must be met with making a valid unprivileged will in india.
What are the conditions for an Unprivileged Will to be valid?
The following conditions must be satisfied for making a valid unprivileged Will-
- The first condition for an unprivileged will in india to be valid is that it must be in written form. The law also requires the words in the will to be clear and intelligible
- As per section 63 of the Indian Succession Act, 1925, the creator (testator) of the unprivileged will must sign/affix his or her mark on the will.
- As per unprivileged will section 63, the signature /mark of the creator ( or the signee on his behalf) must be placed in such a way so that it discloses clear intention of the creator to give effect to what is written in the will
- Unprivileged will section 63 also specifies that two or more witnesses should attest to the will. They must have seen the testator (or his authorised signatory) sign/ affix his or her mark on the will. But, a beneficiary of the will should not be included among the witnesses.
What are the benefits of an Unprivileged Will?
Most families in India do not follow the practice of creating a will. However, death is an unavoidable scenario and having a will can help families to avoid legal hassles related to property matters that may arise on account of the death of the head of the family. Here, we will look at some of the major benefits of having an unprivileged will -
For Distribution of property
An unprivileged will is to make sure that the property gets distributed /transferred as per your wish, after your death. In absence of a will, a person is said, in legal parlance, to have died ‘intestate’. In such a scenario, the property of a person is distributed as per the relevant provisions of the Indian Succession Act of 1925 or any other Act permissible to the religion of the person. An unprivileged will be of help if a person wishes to pass on a larger share of his property, to address any special needs of any of his children, after his death.
Reduces legal hassles
Civil cases of lengthy nature can invite huge legal expenses, effort and time for a family. Having an unprivileged will in place can facilitate timely settlement/transfer of the property of the deceased and can save the family from costly legal tangles or property disputes.
Provides financial security
There are instances when we see one family member needing more financial assistance or security than other members of the family, owing to certain special requirements or conditions. For example, a differently-abled child may need more financial assistance throughout his lifetime. In such a case, the head of the family may decide to leave a larger part of his property for this child and may not wish to distribute all his property equally among all his successors. In the absence of an unprivileged will, the property of the deceased will be distributed equally amongst all his successors, without considering the special needs of the differently-abled child.
Helps to keep a proper inventory of assets
It is often observed that the legal heirs of a deceased are not fully aware of his assets ranging from bank accounts to movable/immovable properties. On account of sudden death, some properties of the deceased may, therefore, remain unclaimed by his legal heirs. Therefore, it is important to track all the assets and complete the formalities of creating an unprivileged will beforehand. An unprivileged will reduces the chance of legal heirs losing track of properties/assets of a deceased.
How to execute an Unprivileged Will?
An executor is appointed to ensure the execution of the unprivileged will. He is given the power to make sure that the contents of the unprivileged will are executed correctly. He is the person responsible for administering the execution procedure of an unprivileged will under the succession act.
A probate court is given the responsibility to supervise the executor so that the wishes mentioned in the will are honoured. It is a part of the judiciary that handles matters mainly related to wills, estates, guardianship, conservatorship, etc.
An unprivileged will has no effect during the lifetime of the creator. It can be enforced only after the death of the creator (the testator). The will gives no rights whatsoever to the inheritor (legatee) until the testator's death. However, the testator is well within his rights to change the contents of his will in any manner, at any time, as deemed fit to him. If an unprivileged will is pronounced void if it is found to be executed by undue influence, force or coercion.
An unprivileged will can be revoked as well. A revocation of unprivileged will can be either voluntary or involuntary. Involuntary revocation of unprivileged will can only be done by operation of law. An unprivileged will stands revoked if the testator gets married. Revocation of the will is necessitated not only by his/her first marriage but by any subsequent marriage as well. The testator can make any number of wills in his lifetime, but, only the last one, executed before his death can be enforced by law.
What are the laws that govern an Unprivileged Will?
The Indian Succession Act of 1925 usually governs matters related to succession in India. However, personal laws also come into the binding for unprivileged will in India. Muslim Personal Law is one example of governance of unprivileged will in family law. Here, matters related to succession and inheritance in Muslim families are governed by executing an unprivileged will in family law. According to this, a Muslim person is allowed to dispose off one-third of his remaining property lest after paying debts and funeral expenses, without taking any consent of his heirs. Similarly, the Parsis and Christians in India have their own succession rules governed by family laws.
The creator of an unprivileged will is not legally bound to register the same. But, if the Registration of will has been completed with the Government Sub-registrar under the provisions of the Indian Registrations Act, 1908, the validity of the same cannot be charged post the death of the creator.
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FAQs on Unprivileged Will
Privileged willsare wills that are made in accordance with certain formalities prescribed by law. These formalities are designed to ensure that the will is made voluntarily and that the testator (the person making the will) is of sound mind. Privileged wills are more likely to be upheld by the court than unprivileged wills.
Unprivileged wills are wills that are not made in accordance with the formalities prescribed by law. These wills are less likely to be upheld by the court.
The following are some of the formalities that must be followed in order to make a privileged will in India:
If a will does not comply with these formalities, it may be considered an unprivileged will and may not be upheld by the court.
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