“A will can save one’s family from being put into a quagmired pit of legal conundrum, in case of death (which may even be untimely).” ― Henrietta Newton Martin
The year 2020-21 has been no less than a nightmare in the lives of all of us; Covid 19 has pushed many people to death. Many, without taking their last farewell, got away from their loved ones forever and left behind many unfulfilled desires and responsibilities. There are instances where both parents left for their heavenly abode and now the grandparents are fighting for the custody of the children, not for the sake of welfare of minor children but for the sake of the control over the property that the parents of the minors left behind. There is nothing more precious and delicate than life, in such a situation, in our absence; it is our responsibility to protect our loved ones, especially financial security. Economic and financial uncertainties have increased as a result of the Covid-19 crisis. The pandemic has put the lives and wellbeing of countless people in jeopardy. Many people are rethinking their estate plans and succession plans as a result of all of these difficulties and uncertainties and the best solution for all these difficulties is “Will”. Let’s discuss how???
- What is a Will?
Section 2 (h) of Indian Succession Act, 1925 defines “will” as 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 is a unilateral document and takes effect after the death of the person making it. It can be revoked or altered by the maker of it at any time he is competent to dispose of his property.
In simple words will is a document in which a person specifies the method to be applied in the management and distribution of his estate after his death. A will is the legal instrument that permits a person, the testator, to make decisions on how his estate will be managed and distributed after his death.
- Who can make a will??
In India a Will can be made by a Hindu, Buddhist, Sikh or Jain and is governed by the provisions of the Indian Succession Act, 1925. However Mohammedans are not governed by the Indian Succession Act, 1925 and they can dispose their property according to Muslim Law. A will can be made even as per Muslim law however the same should be in compliance with Shariat Law. It is very important to note that according to Muslim Law the limit up to which one can bequeath his own property is only 1/3 of his estate.
- Every person who is of sound mind and is not a minor can make a will.
- Persons who are deaf or dumb or blind can make a will provided they are able to know what they are doing by it.
- A person who is ordinarily insane may make a will during an interval in which he is of sound mind.
- No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause that he does not know what he is doing.
- Nothing prevents a prisoner or alien in India from drawing a Will.
For whom the will can be made?
- Any person capable of holding property can be a legatee under a will and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person can be a legatee.
- Sections 112 to 117 of ‘Indian Succession Act, 1925’ puts some restrictions on the disposition of property by will in certain cases. Dispositions of property by will in some cases have been declared void. If the minor person has been named as legatee by a testator then a guardian should be appointed by the testator himself to manage the bequeathed property.
Why you should make a will?
There are many good reasons as why one should make a will few of them are as follows:
- You can be clear about who gets your assets.
- You can decide who gets what and how much.
- You can keep your assets out of the hands of people you don’t want to have them (like an estranged relative).
- You can identify who should care for your children. Without a will, the courts will decide.
- Your heirs will have a faster and easier time getting access to your assets.
- You can plan to save your estate money on taxes. You can also give gifts and charitable donations, which can help offset the estate tax.
What properties can be covered by a Will?
The elementary rule is that one can only pass on what one has or what one owns. Thus, a person can make a will of his/her own property.
Any property whether movable or immovable can be disposed off by a will by its owner, that property must be a self acquired property of that person or having the status of self acquired property. According to Section 30 of the Hindu Succession Act, 1956, any Hindu can dispose of, by Will or other testamentary disposition, any property, which is capable of being so “disposed of by him or by her”, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force. By an amendment in Hindu Succession Act in 2005 the concept of ancestral or Joint Hindu Family is being set aside and it has been provided that where a person dies after 2005 the ancestral property in hands of his heirs shall be in the nature of his self acquired property. Section 6(3) of the Hindu Succession Act provides that
– Where a Hindu dies after the commencement of Hindu Succession Act 2005, his interest in the property of joint family, Shall devolve by testamentary or intestate succession as the case may be, under this Act and not by survivorship, & the coparcenary property shall be deemed to have been divided as if a partition has taken place and, daughter is allotted the same share as son
Can a person change his/her will?
The answer to the above question is in “affirmative” yes a person can change his/her Will, at any time, in any manner he/she deems fit and proper. A Will can be made at any time in the life of a person. There is no restriction on how many times a Will can be made by a testator. However, only the last Will made before his death is enforceable. A Will has to be executed by the testator, by signing or affixing his thumb impression on it. It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will.
What are types of wills in India according to Indian Succession Act??
- Unprivileged Will. Will created by a person who is not a soldier employed in an expedition or engaged in actual warfare or a mariner at sea is known as an unprivileged Will. …
- Privileged Will. …
- Conditional or Contingent Wills. …
- Joint Wills. …
- Concurrent Wills. …
- Mutual Wills. …
- Duplicate Wills. …
- Sham Wills.
- Holograph Will
Can a “Will” be Registered?
Section 18 of Registration Act, 1908 provides a list of documents for which registration is optional. “Wills” are mentioned in clause “e” of the section 18. This says “Registration of Wills is not compulsory and depends on the choice of the testator”.
Normally, the testator will have to visit the office of the sub-registrar of assurances of his area for registration of his/her Will. Thus the personal appearance of the testator and the witnesses is required for the registration of the will therefore a registered Will provides strong legal evidence against challenges about the mental capacity of the testator to make a Will. It can be presumed that a registered will is not made under any fear, pressure undue influence or intoxication. A Will, made under influence of intoxication or in such a state of body or mind, sufficient to take away free agency of the testator, is void. Also a will which is made with uncertain subject or object (Sec. 89 Indian Succession Act), a will which is made upon an impossible condition (Sec. 124 Indian Succession Act), A will which is based upon immoral or illegal condition (Sec. 127 Indian Succession Act) is Void.
A Will, Registered or Unregistered can be challenged before the Court of Law on the following grounds,
- Coercion (Section.15 of the Indian Contract Act)
- Undue influence (Section.16 of the Indian Contract Act)
- Fraud (Section.17 of the Indian Contract Act)
- Forgery
- Suspicious nature
- Lack of due execution
- Lack of testamentary intention
- Lack of testamentary capacity
- Lack of knowledge and approval
- Revocation
Section 61 of Indian Succession Act provides that a Will, or any part of Will made, which has been caused by fraud or coercion, basically not by free will, will be void and the Will would be set aside. Further a “will” containing any element of fraud, coercion or undue influence can be challenged.
Conclusion:
A will is not only a written document that manifests your wish to who will get your property/estate bequeathed. It speaks for you after you die. It communicates how you want your property and assets to be distributed; name a guardian for your children if you pass away before they reach adulthood; not only this but it is a thread which can fasten all the family members in one. All Wills are revocable at any time during the life of the person and is a confidential document. Hence, it is important for everyone to know about the benefits of having a will and create a Will.