Law of Wills in India

A Will is a document which ensures that your wishes with respect to your assets and property are

followed after your death.

There Often arises problems and complications when a person dies without a Will. Yet we put off

making a Will, not realizing the predicament we put our family in, after our death. It's a little effort that

goes a long way. You will find the answers to the questions you may have had on making your Will,

registering it and other relevant information.

Definitions:

A Will is defined as "the legal declaration of the intention of the testator, with respect to his property,

which he desires to be carried into effect after his death." In other words, a Will or a Testament means a

document made by person whereby he disposes of his property, but such disposal comes into effect

only after the death of the testator.

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.

Executor is the legal representative for all purposes of a deceased person (testator) and all the property

of a testator vests in him.

Legatee/Beneficiary is a person who inherits the property under a Will.

Probate is a copy of the Will, certified under the seal of a competent Court.

Testator is a person making a Will and executing it

Essential Characteristics

Legal Declaration: The documents purporting to be a Will or a testament must be legal, i.e. in

conformity with the law and must be executed by a person legally competent to make it.

Disposition of Property: The declaration should relate to disposition of the property of the person

making the Will.

Death of the Testator: The declaration as regards the disposal of the property must be intended to take

effect after his death.

Revocability: The essence of every Will is that it is revocable during the lifetime of the testator. People

capable of making Wills are, Every person who is

not a minor

of sound mind

free from fraud, coercion or undue influence

Forms and Formalities:

Form of a Will:

There is no prescribed form of a Will. In order for it to be effective, it needs to be properly signed and

attested. The Will must be initialed by the testator at the end of every page and next to any correction

and alteration.

Language of a Will: A Will can be written in any language and no technical words need to be used in a

Will, however the words used should be clear and unambiguous so that the intention of the testator is

reflected in his Will.

Stamp Duty: No stamp duty is required to be paid for executing a Will or a codicil. A Will, therefore,

need not be made on stamp paper.

Attestation: A Will must be attested by two witnesses who must witness the testator executing the

Will. The witnesses should sign in the presence of each other and in the presence of the testator.

Under Parsi and Christian law, a witness cannot be an executor or legatee. However, according to

Hindu Law, a witness can be a legatee. A Muslim is not required to have his Will attested if it is in

writing.

Registration: The registration of a document provides evidence that the proper parties had appeared

before the registering officers and the latter had attested the same after ascertaining their identity. In

India, the registration of Wills is not compulsory even if it relates to immoveable property. The non-

registration of a Will does not lead to any inference against the genuineness of a Will. In other words,

registration therefore does not give any special sanctity to the Will though registration of the Will by

the testator himself evidences the genuineness of the Will.

Whether registered or not, a Will must be proved as duly and validly executed, as required by the

Indian Succession Act. Once a Will is registered, it is placed in the safe custody of the Registrar and

therefore cannot be tampered with, destroyed, mutilated or stolen.

Procedure for Registration: A Will is to be registered with the registrar/sub-registrar with a nominal

registration fee. The testator must be personally present at the registrar’s office along with witnesses.

Revocation and Amendment: A Will can be revoked, changed or altered by the testator at any time

when he is competent to dispose of his property. A person can revoke, change or alter his Will by

executing a new Will, revoking the earlier Will, registering the new Will (if the old Will is registered),

destroying the old Will or by making a codicil. On the marriage of a Parsi or a Christian testator, his/her

Will stands revoked, this however does not apply to Hindus, Sikhs, Jains and Buddhists.

Codicil:

A 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. A codicil has to be executed and attested like a Will. A codicil is

similar to a Will and is governed by the same rules as a Will.

Probate and Letters of Administration

Probate: A probate means a copy of the Will, certified under the seal of a competent Court with a grant

of administration of the estate to the executor of the testator. It is the official evidence of an executor's

authority. A probate is mandatory when the Will is executed by a Hindu, Christian or Parsi in the cities

of Mumbai, Calcutta or Chennai, or pertains to immovable property situated in Mumbai, Calcutta or

Chennai.

Effect of grant of probates : A probate granted by a competent court is conclusive evidence of the

validity of a Will until it is revoked and no evidence can be admitted to impeach it except in a

proceeding to revoke the probate. However, it only establishes the legal character of the executor and in

no way decides the title or even the existence of the property devised. The grant of the probate decides

only the genuineness of the Will and the executors right to represent the estate.

The grant of a probate is conclusive evidence of the testamentary capacity of the person who

made the Will.

A probate is conclusive as to the genuineness of the Will and appointment of the executors.

Once a probate is granted, no suit will lie for a declaration that the testator was of unsound

mind.

Probate is conclusive as to the representative title of the executor.

To whom probates can be granted : Under the Indian Succession Act, 1925, a probate can be granted

only to an executor appointed under a Will. However, it cannot be granted to a minor, a person of

unsound mind, or to association of individuals, unless it is a company that satisfies the conditions

stipulated by the government.

When a probate can be granted : A probate cannot be granted until the expiration of seven days from

the date of the testator's death.

Letters of Administration: In the event a person dies intestate or a Will does not name any executor,

an application can be filed in the courts of law for grant of probate.

To whom can a LoA be granted : Under the Indian Succession Act, 1925, a LoA can be granted to

any person entitled to the whole or any part of the estate of the deceased person. However, it cannot be

granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company

that satisfies the conditions stipulated by the government.

When can a LOA be granted : A LoA cannot be granted till the expiration of fourteen days from the

date of the testator's death.

Legal Declaration: The documents purporting to be a Will or a testament must be legal, i.e. in

conformity with the law and must be executed by a person legally competent to make it.

Disposition of Property: The declaration should relate to disposition of the property of the person

making the Will.

Death of the Testator: The declaration as regards the disposal of the property must be intended to take

effect after his death.

Revocability : The essence of every Will is that it is revocable during the lifetime of the testator.

People capable of making Wills are, Every person who is:

not a minor

of sound mind

free from fraud, coercion or undue influence

Executors:

An executor is a person who is appointed by a testator to execute his Will. In other words, an executor

is duty bound to distribute the assets of the testator as per the provisions of his Will. A probate of a Will

is granted only to an executor appointed by the Will.

Who can be an Executor: All persons capable of executing Wills can be executors. Even a minor can

be appointed an executor of a Will, but a probate cannot be granted to the minor until he attains

majority. A testator can appoint one or more executors. The appointment of an executor may be

absolute or for a limited purpose or limited time. An executor as such does not derive any benefit under

the Will, unless specifically provided for. However, as an executor has vast powers and the property

vests in the executor until it is finally distributed to the legatees, it is therefore advisable to appoint a

responsible and accountable person/institution such as a bank as an executor. The Executor is primarily

appointed to manage the estate of the deceased for the benefit of the beneficiaries/legatees under the

Will.

Legal status of the Executor: The executor is the legal representative for all purposes of a deceased

person and all the property of the testator vests in him until the property is distributed as per the

provisions of the Will. The executor is entitled to represent the testator in any legal action (not

including criminal or defamatory proceedings). For example, an executor can sue for recovery of the

testator?s debts. It is only the legal estate of the deceased that vests in the executor and the vesting is

not of beneficial interest. The property vests in the executor only for the purpose of representation and

administration.

Duties of an Executor:

To ascertain the assets of the deceased person.

To pay testamentary and funeral expenses.

To collect the debts and assets of the deceased.

To pay the debts of the deceased.

To apply for a Probate, whenever necessary.

Applicable laws and Special provisions

Applicable Laws

The Indian Succession Act, 1925

Hindu Personal Laws

Muslim Personal Laws

The Indian Registration Act, 1908

Special Provisions

Hindus, Sikhs, Jains and Buddhists Will :

A Will is not revoked upon the marriage of a Hindu, Sikh, Jain or Buddhists.

The executor can also be the witness to the Will.

A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or

Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or

Chennai.

Parsis and Christians Will:

A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or

Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or

Chennai.

On the marriage of a Parsi or Christian testator, his/her Will stands revoked.

Muslims Will

Muslim Personal Law governs a Muslim testator's power to make a Will, the nature of the Will, its

execution and attestation thereof etc. Under the Muslim Personal Law, a Muslim testator can make a

Will orally or in writing and no form is required for such writing. However, it is preferable to have a

written Will. If the Will is in writing it need not be attested. It may be noted that the provisions of the

Indian Succession Act do not generally apply to a Muslim testator unless specifically stated in the Act.

In India, a person who is a major and of sound mind can make a Will and he can dispose of all or any

part of his property by Will. However, there are two basic restrictions on the power of a Muslim testator

to make a Will,

A Muslim can bequeath only one-third of his property by Will.

The heirs of a Muslim testator may consent to bequest in excess of one-third of the testator's

assets.

A Muslim may change his Will during his lifetime or cancel any legacy. A Will may also become void

if a Muslim testator, after making the Will, becomes unsound of mind and continues to be so till his

death. Similarly, a bequest which is contingent, or conditional or in the future or is alternative to

another, pre-existing one, would be void. If an executor is appointed by a Muslim testator, the powers

and duties of the executor will be in accordance with the provisions of the Indian Succession Act which

have been discussed elsewhere.

What is a Will ?

A will can be made by anyone above 21 years of age in India. You can make the will on plain

paper in India. It’s not legally necessary to make the will on stamp paper. It is advisable to write

your will in your own hand writing, as the same can be verified later in case of any doubts raised

by relatives. It might happen that according to your family structure and your preferences, you

want to divide your wealth unequally or make a provision for a close friend or a faithful servant.

This isn’t possible if you die without a will. A lot of us feel that talking about “Making a Will” is

pretty morbid, and hence, we don’t look at it with right attitude.

“A will is a sensitive topic to open up to. People are not comfortable discussing a will in India.

There is a misconception that if someone tells you to make a will, the person thinks that indirectly

you are telling him that his end is near or that you are eying his property. However, all

apprehensions disappear when I tell them the consequences of not making a will” says Shankar

Pai, who has done some commendable work in area of spreading awareness on making wills.

How to make a WILL in India and its importance ?

A will is so important, that it should be your first step in your financial life. If your family

structure is diverse, and you want to leave your wealth to different members of family like you

want to, you should prepare your WILL today, not tomorrow, not later. To wit, if you die without

preparing a WILL in India, your wealth will then be distributed as per ‘Hindu Succession Law’

(Government rules, on how wealth should be divided among family members). A common

misconception, is to believe that all the estate is automatically passed on to the spouse, because

children and sometimes even relatives can stake a claim to the property. Laws of inheritance and

succession, are complicated and diverse in nature, and are different in case of Hindus and

Muslims.

Another point you should consider, is the inconvenience caused to your family members because

of your laziness, in not making a will for them. In case of a dispute, your family members have to

produce the proof about their relationship with and also have to go helter-skelter to lawyers and

spent money and energy. Much better then, to gift them some time of yours, and creating a will!

This will save them a lot of headache.

How do you make a Will in India?

A will has several parts, which duly completed, make up a complete Will. Though there is no

legal or defined format, there is a template, which has been generally used for ages. It’s simple,

it’s very logical and derives from common sense. Let’s look the whole format and some important

points while creating a will.

Step 1 : Declaration in the beginning : In the first paragraph, you have to declare that you are

making this will in your full senses and free from any kind of pressure. You have to mention your

name, address, age, etc at the time of writing the will so that it confirms that you really are, in

your senses

Step 2 : Details of Property and Documents : The next step is to provide list of items and their

current values, like house, land, bank fixed deposits, postal investments, mutual funds, share

certificates owned by you. You must also indicate, where all these documents are stored by you.

In all probability, these are in your bank safe deposit box. Even the will should be stored in there!

Make sure, you take the details from the bank manager, about the procedure and rules of releasing

your will from the safe deposit after your death. Make sure you communicate it to the executor of

the Will or your family members . I am sure, they’ll be pretty interested in this

Step 3: Details of ownership : At the end of the will, you should mention who should own your

assets items and in what proportion, after you have gone. If you are giving your assets to a minor,

make sure you appoint a custodian of your assets till the individual you have selected, reaches an

adult age. This custodian obviously, has to be a trustworthy person.

Step 4 : Signing the Will : At the end, once you complete writing your will, you must sign the

will very carefully in presence of at least two independent witnesses, who have to sign after your

signature, certifying that you have signed the will in their presence. The date and place, also must

be indicated clearly at the bottom of the will. Make sure you and the witnesses sign all the pages

of the will. One important point while choosing witness, is that they should be your friends,

neighbors, or your colleagues and not the direct beneficiaries in the Will. They only certify, that

you yourself have signed the will in their presence and are not a party in making the will in India.

The envelope has to be sealed after completing all the formalities and the seal must bear your

signature and the date of sealing. The witnesses need not sign on the seal of the envelope.

See another Template from Department of Stamp and Registration, Karnataka here, thanks to

Babu .

Execution of Will in Court ?

When you are dead, there is someone called an “Executor” who will be responsible for dividing

your wealth amongst the beneficiaries and he will make sure the whole process is smooth (You

must have seen this in Hindi movies). It is not legally required to get the will executed in a court

of law in presence of a judicial Magistrate in India. However, if you wish, the will can be

executed in the presence of Magistrate or the public notary, nominated by the government

authorities and sealed in their presence.

Changing the WILL in India ?

You can change your will any time you want to. However, make sure that when you make a new

will, you mention that this will is the latest and supersedes all earlier wills. If you don’t, it can

complicate the situation, cause major confusion, make such matters go to the court of law and

take several years before arriving at any final verdict.

Making a Will through Lawyer

“Do-it-yourself” wills often do not contain all the necessary components as required by law and

many times ruled as invalid by courts (for example no signatures from witness or no witness at

all). Many a time, it can happen that while creating the will, you use such ambiguous language

that it results in lengthy legal battles (“My House should go to Sunita.” Now if both mother and

wife are called Sunita, which Sunita ought to get it?. Anyone who might benefit from the

ambiguity of the will can jump in to claim a share! And if the courts decide in his/her favour, you

wont like that situation (not that, you’ll be around!)

What is a Probate and it’s importance?

A probate is nothing but a copy of will, certified under the seal of court. The executor (someone

who is responsible to execute the will) has to file a probate petition in the court of law and if all

goes well, the probate takes six months to a year. No right as executor or legatee can be

established unless a court has granted the probate of the Will. Probate can be granted only to the

executor appointed by the Will. The cost of getting a probate includes legal fees as well as stamp

duty on the value of the property being willed. The stamp duty varies from state to state. Probate

is very important in case of Real Estate. As per Sundar, a reader of this blog…

Legal heirs to get possession of the property from the nominees have to go through a legal process

called probate. In Maharashtra this means, the will have to be submitted to Registrar and one will

have to obtain a probate. The Registrar may ask the claimants to put an advertisement in

newspaper to ensure that they will not be contested. They may even ask the witnesses who have

signed the will to come to their office and sign documents. After all this, and some court

affidavits, the claimants have to pay the necessary tax to the state govt. which is hefty and based

on property value. After Goverments takes its cut, then finally the probate order is given. Only

then will the legal heirs get their property. Note that, probate requirements differ from state to

state. Hence even when making a will a Lawyer should be consulted. I know of fights between

Nominees and Legal Heirs. Roadblocks put up by Goverment ( some times they ask for

Registered Will etc.). So just writing a will is not the end of the story. Better consult a lawyer

before drawing a will.

Further please note especially in case of land or house property, the society will not transfer the

flat without a probate and tax paid certificate. Many times, a prospective buyer will not buy a flat

or land, if the holding is not clear and if the property had not been cleanly transferred and if there

are disputes between nominees and legal heirs. Flat may still stay in the dead person’s name till

their heirs and nominees settle their disputes. Till then, the flat may be used by Nominees or any

other person. But Society will not transfer the flat to prospective buyer till the process of probate

is settled first. Hence such property cannot be sold easily. Please proceed with great care in this

matter.

Important points while making a Will

If possible, have the two witnesses be a doctor and a lawyer. A doctor signing a will, won’t raise any question of you, being of unsound mind. The lawyer, will vet the will and make sure you dont make stupid mistakes at the time of writing and signing it.

The attesting witness and his or her spouse should not be a beneficiary under the terms of your Will. This might create vested interests and some times make your will invalid. Also, make sure the witnesses are younger than you and not very old as your will might be in effect for several years! And you want them to be present in this world .

Write your will on good quality thick white paper so it doesn’t get spoiled over a period of time. It should be stored in a plastic envelope in full size, without folds.

Note that you should keep just one more copy of will and stored separately from the original will. The will must be stored very safely in your bank, in safe deposit box. You must also inform your next of kin, as to where you have stored your will. Do not make many copies of your will.

In case of Hindus, it should be clearly stated if the property is inherited or not, because it makes a huge difference, as no ancestral property can be assigned to any person through a will. All rights on inherited property are acquired by birth. So if you inherited a property from your Father, you cannot say in a will, that you want to assign it to person X only! It will go to all your legal heirs as it is “Inherited”

A will must always be dated and if more than one will is made, the one with the latest date will nullify all the previous ones. In fact, there should be a statement in your will, nullifying all other previous wills. The pages should be numbered to avoid fraud.

The value of assets often fluctuates, so it is better to mention how much each beneficiary

will receive, in percentage terms rather than absolute numbers. Unless it is pure cash.

So what appeals to you more ? Writing a will your self or hiring a lawyer for this and pay to him

? I hope you are clear about the rules and procedure for writing a WILL in India ?