Succession:

Property cannot remain ownerless, even for a moment, and therefore, on the death of its owners, it must immediately vest in someone; and here, the question, as to who would be the owner of the property, after the death, is answered by law of succession. Under the Law, a succession is usually divided into the testamentary succession and intestate succession.
 

Testamentary Powers and Succession:

The property can be dealt-with in any manner, by its owner, during his lifetime; however, the law of testamentary succession enables him, to exercise his freedom even after his death. He has the freedom to lay down the scheme of distribution of his property, according to his own choice, under his Will. And, if his Will is valid, and if it lays down the scheme of distribution of property, and if he has not infringed any provisions of law, then his scheme of distribution would be given effect to. During his lifetime, he also has freedom to change, modify or rescind his Will, as many times as he wishes, before his death, thereby making another Will. Ordinarily, the last Will of a testator would repeal (i.e. revoke) all his earlier wills.

Law grants the owner full freedom to give his property, after his death, to any person, such as, to his wife, daughter, servant, friend, a school, a hospital, a temple, an institution, or even to his concubine. Here such freedom is also available to a female owner. However, in case of a Muslim person, there are certain restrictions for disposing of property by way of Will. Thus, in short, the owner can give the property to any person, which may include relatives or non-relatives, or an institution, charitable or commercial. This he can do so, under law of testamentary succession, i.e., he can make a Will, and there-under he can lay down a scheme of distribution of his property, taking effect after his death; and, so long as, he conforms to certain formalities, such as, attestation of the Will by two competent witnesses, he has the freedom to give the property to any person.
 

Intestate Succession / Inheritance:

When such owner dies without making a Will, then his property is to be distributed among his relatives. His relations with them may be by blood or by marriage. In other words, in such cases, a non-relatives are not entitled to any share in the property of the deceased owner. The relatives, who are entitled to succeed to the property, on the intestacy (i.e. owner dying without making Will), are known as heirs. Here, who are the heirs of a person, and what share they will take in the property, are questions, which relate to the Personal Law applicable to the deceased person. When a person dies without making a Will, or if, in case he had made a Will, (but) his Will is found to be invalid, then his property devolves by the rules of intestate succession.

The law of intestate succession is properly called as the law of inheritance. The law of intestate succession is concerned with the question of determining, as to among the relations of the deceased, who are his heirs, i.e., who are those relations, who are entitled to take his property, and what will be the share of each heir, i.e., in what manner and in what proportion property is to be distributed among the heirs. If in case a deceased person had left no relations, then, under the personal laws of all communities, the State inherits such property under the principle of escheat.
 

Law of Testamentary Succession:

In India, every community has its own personal law; the Hindus, the Muslims, the Christians, the Parsis and the Jews are each governed by their own separate personal laws, in all their personal matters, such as, marriage, divorce and succession. A Sikh, a Buddhist, a Jain or a Hindu is called a Hindu, because the same personal law applies to him.

The testamentary powers of a Hindu is governed by the Hindu (Personal) Law. The Indian Succession Act, 1925 does not deal with substantive law, such as, what property may be transferred. This Act of 1925 primarily deals with the formalities, related to the execution, revocation and interpretation of Wills, the grant of probate, and with powers and duties of the executors and administrators.

The Law of Testamentary Succession, i.e. law relating to Wills, of the Hindus, Christians, Parsis, Jews and others (other than Muslims) is almost uniformly contained in the Indian Succession Act, 1925, with some modifications as regards to Hindus. Here, for the purposes of Law, the word Hindus also includes Sikhs, Buddhists and Jains besides the Hindus.

 

Meaning / Definition of a Will:

A Will is an instrument (i.e. document), by which a person makes a disposition of his property, which is intended to take effect after his death. A Will or testament is a declaration, in a prescribed (i.e. legal) manner, of the intention of the person making it, with regard to the matters, which he wishes to take effect upon or after his death.

Any such person, who is of sound mind, and who is not a minor, can execute his or her Will. Here, it is to be noted that, such person may be very sick or ill, i.e. of unsound health, but, at the moment of execution of Will, he must be of sound mind. It means that, he must have capacity to realize or understand, as to what are his properties, who are near and dear to him, in whose favour it would be better to dispose of property, etc. In short, any such person, making a Will, must be able to know the nature of his acts and its consequences. And therefore, it is safe practice that, the instrument of Will has to be appended with the medical certificate of such doctor, who, after actual examination of such person (making a Will), certified that, such person is in good and sound state of mind, although he may not in physically sound condition as the case may be.

The outstanding feature of a Will, which distinguishes it from other instruments (like a Gift-deed), is that, it is an essentially revocable instrument (i.e. document). A Will is revocable, at any time during his lifetime, by the testator (i.e. person, who makes a will) before he dies. Whereas, the transaction of gift, once made by the donor and accepted by the donee, is full & final, and then, it cannot be revoked by the donor, in the sense that, he cannot claim-back the gifted-property from the donee (i.e. the person, to whom, gift is made).

It is not necessary, for any testamentary document, to use any special / technical words, or to have any special form. However, the wording must be in such manner that, the intention of the testator can easily or clearly be known therefrom.
 

Importance of making a Will:

A Will is the declaration, by the owner (of property), as to how his property is to be disposed of on or after his death. Such declaration (i.e. Will) takes effect only on or after the death of such owner, and so, it may be revoked anytime during the lifetime of such owner. Ordinarily, in the absence of Will, upon the death of any person (owner), his all property naturally and automatically devolves, by effect and operation of Law, i.e. as per the Rules of Inheritance, upon his own (all) heirs. But, when such person does not wish that, his property should naturally devolve merely upon his heirs, or, if he does not wish that, his each and all property should devolve only upon his own heirs, then in such cases, he may dispose of his all or any part of his property, as per his own wishes, thereby making the Will. In other words, if any person wishes that, after his death, his property, or at least its part, should be given to any particular person of his own choice, which may include any stranger person, and not necessarily his own heir, then he can fulfill his wish thereby making a Will.

Now take the case of one such man, who was initially belonging to vey poor family. Since he was having good talents, one charitable organization provided him financial support for his higher education. Thereafter, his then one wealthy friend helped him for establishing his businesses. On such background, said man, with his tremendous efforts, later on, earned lot of income and properties (including immovable property). Now said man became aged and often becomes ill. He has one young married son, who does not take any care of his own aged parents. Besides, said man also has one married daughter, who is very poor, but who, along with her poor husband, takes lot of care of her aged parents.

That, his said wealthy friend is already died, but whose son is now in financial crises. Now suppose, because of his feelings of affection towards his poor daughter, said man wishes that, some larger share of his property should go to her, than that of his son. Besides, because of his feelings of gratitude towards his pre-deceased then wealthy friend, he wishes that, some part of his property should go the said son of his friend. Besides that, since said man believes that, said charitable organization has been doing great work for the society, he wishes to donate some of his property to said organization. So here, how can he fulfill his all such wishes? Here, one option is to make the gifts or donations during his lifetime itself. But, for making such gifts, especially of any immovable property, it requires lot of expenses towards stamp-duty and registration charges. Besides that, if he makes such gifts, now at present moment, then he will be deprived of from the enjoyment of his property during his remaining lifetime. Further, if he gifts now a larger share of his property to his daughter, then his said careless son will start quarrels with his own parents and sister. Hence here, this option of making gifts is not good or proper. Therefore he should make a Will.


Issues of Heirs in case of Inheritance : –
Suppose, if any male-person, particularly a Hindu, Sikh, Buddhist or a Jain, dies intestate, i.e. without making a Will, then his absolute property, devolves firstly, upon all his preferential heirs, i.e. Class-One heirs, which includes now Sixteen categories of relatives, who, if all surviving the deceased, shall have the right, to inherit, or to take such property in succession, together and simultaneously.

For instance, the fourteenth category, of such preferential (class-one) heirs, is the Daughter of a pre-deceased daughter of a pre-deceased daughter, and the sixteenth category, of such heirs, is the Daughter of a pre-deceased daughter of a pre-deceased son, of the deceased person, whose property is now subject of devolution or inheritance. And, in the absence of such Class-one heirs, i.e. when, behind such deceased person, not even any single heir, out of those sixteen categories of relatives, is surviving, then his property devolves secondly, upon his those relatives, which are known as Class-Two heirs, and which includes Nine groups of heirs consisting of many relatives.

For instance, the Father of such deceased person is one of such Class-two heirs. Therefore, now suppose, if such deceased Hindu male is survived by only two relatives, namely, his father, and other one is his pre-deceased daughters pre-deceased daughters daughter, i.e. his great-granddaughter, then in such situation, his all property would devolve only upon such great-granddaughter thereby totally excluding the father from inheritance. And, this is the problem of intestate succession, i.e. where a person dies without making any Will. Besides that, since there are so many heirs, in reality, often dispute arises, regarding the preference of share and quantum of share, in the distribution of property of such deceased person in case of inheritance. Today, number of litigation (court-cases) is pending, for many years, between the brothers and their married sisters, regarding succession or inheritance of property of their deceased father.

Hence, all such problems, disputes or litigation, can simply be avoided, if a person makes a Will for disposition of his property.
 

Important Terms relating to a Will:

Testator: A person, who makes the Will. He is the person, whose property is to be disposed of, after his death, in accordance with the directions specified under the Will.

Legatee / Beneficiary: A person, to whom the property will pass under the Will. He is the person, to whom the property of the testator would be bequeathed under the Will.

Bequeath: The act of making bequest.

Bequest / Legacy: The property or benefits, which flow under the Will, from the testators estate to the beneficiary.

Estate: The property of the testator remaining or left after his death.

Witnesses: The persons, who are the eye-witnesses of the fact of singing of the Will by the testator.

Executor: The person, who would administer the estate of the testator, after his death, in accordance with the provisions / directions under the Will. He is appointed by the testator himself under / by his Will. Executor has to act like a trustee. Besides, even any such legatee, who undertakes to carry out the wishes of a testator, will be treated as a trustee.

Administrator: The person, to whom Letters of Administration is granted, by the competent Court, for administration of the estate of any such testator, who had not appointed any person as an executor under / by his Will. Such administer can also be appointed by the Court, in cases, where the testator had appointed one person as executor under the Will, but such person refuses to act so as executor, or he is legally incapable to act as so, or he dies, before the death of testator, or before the Will has been proved, or before he has been able to execute the Will fully. The distinction between an executor and administrator is that, the executor can be appointed by the testator under his Will, whereas the administrator can be appointed only by the competent Court.

Probate: When the competent Court grants letters of administration, which is annexed with the Will, then it is said to be grant of probate. Probate means the copy of a Will, which is certified under the seal of a competent Court, with a grant of administration to the estate of the testator. It is the conclusive evidence about the due execution and validity of the Will, and about the testamentary capacity of the testator.

Attestation of Will / Attesting Witnesses:
Attestation of the Will is a mandatory (i.e. compulsory) formality of an ordinary (i.e. regular)Will, which is also called, in legal terms, as an unprivileged Will. The execution of a Will includes its attestation by witnesses, and so, if there is no attestation, the Will is not validly executed. It is absolutely necessary that, the attesting witness should sign the instrument (i.e. document) of Will.

A Will must be attested by at least two witnesses. It is safe practice that, dont restrict to only two witnesses, if more than two are available, for instance, if four persons are available, then make them such attesting witnesses. Often, the disputes or litigations get created, regarding the due execution and validity of a Will, after the death of testator. So, before giving any effect to such Will, it is necessary to prove its valid execution before the Court. Since now, the testator is dead, he cannot be called now, as a witness before the Court, to prove due execution of his Will. Hence, everything depends now upon the attesting witnesses, through whom only such due execution of a Will can be proved.

While selecting the persons as attesting witnesses, a credibility or reliability of them is very important factor. They must be such persons, who also think and insist that, the wishes of the deceased testator should get fulfilled. Besides that, the age-factor of such attesting witnesses is also important. Generally, such persons should comparatively be of the younger age than that of the testator, otherwise, it may happen that, such witness dies before the testator. Such witnesses must also have capacity to depose or to testify (i.e. to face the examinations) before the Court.

Here, it is suggested that, professionals like CA or advocates, who have drafted any such Will for their client, should avoid themselves from becoming the attesting witnesses of such Will, unless they act in capacity of very close friend of such testator; otherwise, they would be compelled to face the examination, particularly the cross-examination by the adverse party, in a litigation concerning such Will, before the Court, and it creates very embarrassing situation, for all, before the Court. At the most, such professionals like CA or advocates can become the executor of such Will, if the testator also desires so, provided that, they must not take any legacy or benefit under such Will.

Each witness must have seen the testator sign the instrument (i.e. document) of a Will. Where the Will is attested by only one witness, or if it not attested by any witness, then it is invalid. If attestation of the Will is not proved, then even a registered Will is not admissible. Attesting witnesses need not know the contents of the Will. The attesting witnesses merely require to signify that, the testator affixed his signature in their presence. Therefore, the proof of attestation does not mean that, the attesting witnesses knew the contents of the Will. It is not necessary that, all the witnesses should be present at one and same time. The testator may sign in the presence of one witness and acknowledge his signature before another. If the Will has already been signed, then the witness, who has not seen the testator signed, must have received, from the testator, a personal acknowledgment of his signature. However, if one of the attesting witnesses proves the signature of the testator that is enough. Thus, the evidence of one attesting witness is sufficient to prove the Will before the Court.

Since the Wills are treated as magnificent document, they should be free from all suspicion. Therefore the law says that, any bequest, which is given to any attesting witness, or to his / her spouse, shall be null and void. But here, the bequest is that, which is given to the witness, under such Will, which is attested by that witness. However, this rule is not applicable to the Wills made by a Hindu, Sikh, Buddhist or Jain. Nevertheless, it is always safe practice, to avoid giving of any bequests to the attesting witnesses.

Any such person, who is appointed as an executor under a Will, is also competent to sign the Will as attesting witness. But in such cases, if any legacy or benefit is provided to him, under the same Will, then, as said earlier, it again raises a suspicion. Hence, it is safe practice, to have an executor and attesting witness to be different persons.
 

Bequests : Alternative / Residuary; Lapse of Legacy:

There is one important rule that, a legacy will lapse, if the legatee does not survive the testator. Here, the expression lapse of legacy means that, there is failure of legacy or termination of legacy, and so, it cannot given any effect to. Bequests, made under the Will, cannot take effect, until the death of the testator, and therefore, no one can claim anything, under a Will, till the testator dies. If, at the moment of death of the testator, the legatee is not alive, i.e. he is not surviving behind the testator, then any bequest, provided to him, gets failed or terminated.

However, merely by reason of death of legatee before the death of testator, such legacy would not lapse, if the testator clearly mentions, in his Will, that, in such situation, the legacy shall be given to another specified person. Thus, if there is a apparent and clear intention of the testator, which can be noticeable from the instrument of Will, by which, he has also provided a substitute, for a legatee dying in his lifetime, then such substitute legatee would take the bequest. This is called as the bequest in alternative.

Unless a contrary intention appears in a Will, the property, which is subject-matter of the lapsed legacy, will become part of the residue estate of the testator, and then, it will be included in the residuary bequest. But, where a Will does not contain such residue clause, then said property shall go to the heirs of the testator, as per the rules of inheritance, thereby treating that, the testator has died intestate (i.e. without making any Will) with regards to that property.

A residuary legatee is a person, to whom, the testator gives what remains out of his property, after he had made all those specific bequests that he desired to make by his Will. Thus, wherever a testator lays down that, the surplus or residue of his estate, after the payment of his debts, specific legacies and cost of administration, shall go to the person, specified by him in his Will, then such person is known as residuary legatee, and such bequest to him is called as the residuary bequest. Such residuary legatee is also entitled to get all that property, which is subject of the lapsed legacies, or which is subject of such legacies, which have failed to take effect, as being invalid or void.

Generally, in practice, a person, who is the residuary legatee, is also appointed by the testator as an executor of his Will.

There is no prohibition for giving legacies to the executor. But the law says that, if a testator gives a legacy to a person, in his character as an executor of the Will, then such person can have the legacy, only if he agrees to act as executor; because, in such case, legacy is considered to have been given, on the implied condition that, he will also act as an executor. Therefore, in other words, if he refuses to act as an executor, then he cannot claim the legacy. Thus, such executor can claim the legacy, only when he proves the Will, with an intention of acting as the executor, or takes some steps, which clearly indicate his intention to act as executor.
 

Revocation of a Will by Testator:

The execution of a subsequent Will is a mode of revocation of earlier Will. However, it is essential that, such subsequent Will must contain, through separate clause, a statement to the effect that, it is hereby revoking all former Wills, if any. There is one legal maxim that – no man can die with two inconsistent testaments (wills). Therefore, in other way, it can also be said that, if later Will does not revoke earlier Will, and when it is not inconsistent with earlier Will, then any number of such Wills, whatever be their dates or form, can be admitted to probate, because all together shall constitute the last Will of the testator. Here, it is to be noted that, any invalid subsequent Will cannot revoke earlier valid Will.

It is not necessary that, a Will must always be revoked by making another Will. Where the person, who previously made the Will, later on / now does not have any intention to dispose off his property by testamentary succession, then he can revoke his previous Will by one written declaration, thereby expressing his intention to revoke his earlier Will(s). But here, in such case, such written declaration, must also be properly executed by such person, and attested by at least two attesting witnesses.

However, where the testator is personally having the custody of original instrument of his Will, and if he wants to revoke his Will, then he himself can do so, thereby simply burning, tearing or otherwise destroying said original instrument. In this respect, there is one rule that, a duly executed Will was in the possession of the testator, but after his death it was not available, as it could not be traced or found, then in such case, it can validly be presumed that, the testator himself destroyed it, because he intended to revoke the same.
 

Registration of Wills:

Wills do not require registration. Even if, it is registered, no stamp (duty) is required. Even if, a Will bequeaths immovable property, its registration is not compulsory. Here, it is to be noted that, this factor shows the advantage of disposing of property by way of the Will, as compare to that of transfer by way of Gift-deeds of immovable property, which compulsorily requires registration and attract heavy stamp-duty.

However, the genuineness of a Will cannot be doubted, simply because it has not been registered. Nevertheless, when the testator himself registers his Will, then such registration of the Will raises a strong presumption of the validity of the Will. A nominal fee is payable for registration; in Maharashtra, presently such fee is about Rupees One Hundred only.

However, a Will may be deposited with the registering authority under the Indian Registration Act, 1908. A testator may deposit with any Registrar his Will in a sealed cover. Then, after satisfying himself about the identity of the testator, and after making necessary entries in concerned register-book, the Registrar keeps or retains said sealed cover, containing a Will, in his fire-proof box. However, if the testator, later on, is having different intention, then he can withdraw said sealed cover from the Registrar; for that purpose, he has to make prescribed application to concerned Registrar. After the death of such testator, upon application by any person, and after satisfying himself about the fact of death of such testator, who deposited the Will, concerned Registrar opens said sealed cover in presence of the applicant, and then, cause the contents thereof (i.e. instrument of Will) to be copied into his book, and after such coping, the Registrar has to re-deposit the original will. Then any person can get the certified copy of said Will, from the Registrar, after making application and paying fees.
 

Wills under Muslim Personal Law:

Under the Muslim Law, a Will (i.e. Wasiyyat) can be made, either verbally or in writing. However, as it is a safe practice, where the subject-matter of the Will is immovable property, it is better to make it in writing.

Basically, under the Muslim law, a bequest in favour of any heir is not valid. However, it can be made valid by the consent of other heirs, and where such consent is to be obtained after the death of the testator.

Furthermore, under the Muslim Law, one cannot dispose of, by way of a Will, more than one-third (1/3) of his net estate. Here, the net estate means that property, which remains after payment or satisfaction of testators debts owing to third persons and the funeral expenses of deceased testator. In other words, up to such one-third of net estate, any Muslim person is free to make a Will. This is a maximum limit of disposable property through the Will; and it is called as the bequeathable third. However, if in case, more than this limit, property is disposed of by way of Will, then such Will is not altogether void, because it could still be validated by the consent of all the heirs of such person.

A Muslim woman can also make a Will.

Properties: Subject-matter of Will:While thinking about making of a Will, firstly, one must know or realize that, of what or which properties, he is an absolute owner. Such properties may be immovable or movable. Immovable properties include his land and buildings. For the purpose of drafting his instrument of Will, such person must know the exact descriptions of his immovable property, which shows its identity, location, area, its boundaries, its nature of holding, etc. Movable properties include his valuable goods or articles, such as jewelry, furniture, car, etc. He must prepare list of all such items or things, which he wish to dispose of through his Will. He may also entitled to some intangible properties, for instance, he may have rights into any trademark, patent, copyright, etc.

His property also includes the debts, which third person owes to him. Besides, his property also includes his investments into shares or debentures of a company, mutual funds, fixed deposits into bank, various kinds of insurance policies, etc. Therefore, such person must have beforehand into his possession, all those documents, which establish or show his title, ownership, interests or rights over such properties.
 

Obtaining the Probate of Will:

Where any Will is made, by a Hindu, Sikh, Buddhist, Jain or Parsi, within the local limits of the ordinary original civil jurisdiction of the Bombay High Court, or, if it is made outside those limits, but, when it relates to the immovable property, which is situated in those limits, then, for establishing the right, through the Court-proceedings, as an executor of Will or as a legatee under the Will, firstly, one has to obtain the Probate of Will or Letters of Administration with the Will, from the competent Court. However, obtaining of such probate is not required in case of any Will made by a Muslim or Indian Christian.

For obtaining such probate, an executor or any legatee, as the case may be, has to make an application to competent Court; and, while making such application, he is required to pay the Court-fees in following manner. –

• Such court-fees are calculated on the basis of aggregate market values of the properties, which are subject-matter of the Will
• Thus, in case of Maharashtra, when such aggregate value is up to Rupees Fifty Thousand, then court-fee is two per cent of it.
• Then, for the excess value over rupees fifty thousand, up to Rupees Two Lakhs, such court-fee is four per cent of such excess amount.
• Then, for the excess value over rupees two lakhs, up to Rupees Three Lakhs, such court-fee is six per cent of such excess amount.
• Then, for the excess value over rupees three lakhs (up to whatever maximum of such amount), such court-fee is seven and half per cent of such excess amount, but subject to the maximum of Rupees Seventy-five Thousand only.

Nevertheless, if we compare the disposition of immovable property by way a Will with the Gift-deed, then still, disposition by Will is much less expensive. Consider one example here. Subject-matter of such disposition is the house-property worth Rupees Fifty Lakhs, which is situated within the limits of municipal corporation of Pune. So, for transferring said property by way of Gift-deed, it attracts stamp-duty of Rupees Two Lakhs Fifty Thousand, besides the Registration-fee of approximately Rupees Thirty Thousand; whereas, for obtaining the probate for such Will, which had disposed of said property, it merely attracts approximately Rupees Seventy-five Thousand only as the court-fees.

Here, it is to be noted that, this issue of obtaining of probate would come into picture only after the death of the testator, and not at the moment of execution of a Will itself.

Written By: Adv. Hitendra Shah, Pune.
Email : lawteacher.shah@gmail.com