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What do you mean by a will as per the Indian Succession Act, 1925?

What do you mean by a will as per the Indian Succession Act, 1925?

Will as per the Indian Succession Act,1925

Will means the legal declaration of the intention of a person with respect to his property, which he desires to take 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. A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. However, Mohammedan are not governed by the Indian Succession Act, 1925 and they can dispose their property according to Muslim Law.

Who can make a will?

  1. Every person who is of sound mind and is not a minor can make a will.
  2. Persons who are deaf or dumb or blind can make a will provided they are able to know what they do by it.
  3. A person who is ordinarily insane may make a will during an interval in which he is of sound mind.
  4. 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.

Execution of A Will- Section 63

  1. He shall sign or fix his mark to the will or it shall be signed by some other person in his presence and by his direction 
  2. The signature or mark should be so placed that it shall appear that it was intended thereby to give effect to the writing as a will 

The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark on the will or Has seen some other person sign the will, in the presence and by the direction of the testator or Has received from the testator a personal acknowledgment of his signature or mark, or of the signature such other person;

The essential features are:

  1. 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. Further, the declaration of intention must be with respect to the testator’s property. It is a legal document, which has a binding force upon the family.
  2. Disposition of property In a Will, the testator bequeaths or leaves his property to the person or people he chooses to leave his assets/belongings. A Hindu person by way of his Will can bequeath all his property. However, a member of an undivided family cannot bequeath his coparcenary interest in the family property
  3. Takes effect after death The Will is enforceable only after the death of the testator. Under Section 18 of the Registration Act the registration of a Will is not compulsory. Also, the SC in Narain Singh v. Kamla Devi1 has held that mere non-registration of the Will an inference cannot be drawn against the genuines of the Will. However it is advisable to register it as it provides strong legal evidence about the validity of the Will. 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. It is to be released only to the testator himself or, after his death, to an authorized person who produces the Death Certificate.

Since a testamentary disposition always speaks from the grave of the testator, the required standard of proof is very high. The initial burden of proof is always on the person who propounds the Will. Each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witnesses be present at the same time, and no particular form of attestation is necessary.

What property can be disposed of by a will?  Any movable or immovable property can be disposed of by the owner of the property through a will.

Beneficiary Under A Will

As per the Indian Succession Act, any person capable of holding property can be a devisee under a will and therefore a minor, lunatic, a corporation, a Hindu deity, or any other juristic person can be a devisee. Transfer to person by particular description, who is not in existence at the testator’s death, Where a bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who answers that description, the bequest is void.

Let’s take an example, If A bequests 1000 rupees to the eldest son of B. At the death of A, the testator, B has no son. The bequest is void. Revocation of a will/Loss of a will. A will can be revoked in the following manner:

  • By execution of a subsequent will
  • By some writing and declaring an intention to revoke the will.
  • By burning of the will
  • By tearing of the will
  • Otherwise destroying the will

When a will is evoked by a subsequent will, the will so revoked will have no operation.

What will happen if the will is lost?

If a will is lost it will be presumed to be revoked. If the will was seen with the testator, but could not be found after the death testator, it will be presumed that the same has been revoked by the testator by destroying the same.

Registration 

The registration of a will is not compulsory. However, the testator may register the will or deposit the will in a sealed cover with the Registrar. There is no time limit for registration.

FAQ’s

What is a Will? It is a solemn document by which a dead man entrusts to the living to the carrying out of his wishes. S. S.2(h) of the Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a person concerning his property, which he desires to take effect after his death.

What is Codicil? A codicil is an instrument made concerning a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will. The purpose of a codicil is to make some small changes in the Will, which has already been executed. If the testator wants to change the names of the executors by adding some other names, or wants to alter specific bequests by adding to the names of the legatees or subtracting some of them, a Codicil in addition to the Will can be made to do so. The codicil must be reduced to writing and has to be signed by the testator and attested by two witnesses. The court also must arrive at the intention of the testator by reading the Will and all the codicils.

Who is an Executor?  An executor is appointed by the testator, as distinguished from an administrator who is appointed by the court. Where the Will confers the powers to collect the outstanding, pay debts and manage the properties, the person can be said to be appointed as an executor by implication.

What is Probate? “Probate” means the copy of a Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator- Section 2. Probate is an evidence of the appointment of the executor and unless revoked, is conclusive as to the power of the executor. The grant of probate to the executor, however, does not confer upon him any title to the property. A probate is a copy of a will certified by a court of competent jurisdiction. It proves that it is the last and final Will of the deceased penned on a particular date. Probate is granted with the court seal and has a copy of the Will attached to it.

What is an Application? The application for probate has to be made to the competent court (a pecuniary jurisdiction may require a higher court to issue probate for high-value immovable assets) through a lawyer.

What is the Document? The court usually asks the petitioner to establish the proof of death of the testator, evidence that the testator has validly executed the Will, and that it is the last Will and testament of the deceased.

What is a Notification? After receiving the petition or application for probate, the court issues a notice to the next of kin of the deceased to file objections, if any, to the granting of probate. It also directs the publication of a citation in a newspaper to notify the general public.

What is the fee for issuing probate? The court may impose a percentage of assets as a fee to issue probate. In Maharashtra, for example, a court fee of 25 is payable for assets less than 50,000; 4% for assets between 50,000-2 lakh, and 7.5% for assets over 2 lakh. There is a ceiling of 75,000.

What is the Letter of Administration? Letter of Administration is a certificate granted by the competent court to an administrator. It is a formal document issued by a court of probate appointing a manager of the assets and liabilities of the estate of the deceased in certain situations. Courts are often asked to rule on the management of a dead person’s estate. Generally, this is a routine matter for probate courts, which are created specifically for this purpose. Individuals determine typically the distribution of their estate in a will, which usually specifies an executor to carry out its directions. But where the decedent has left no will or the executor named in a will is unable or unwilling to serve, the courts must appoint an administrator. This appointment is made by issuing a short document called letters of administration, which is a decree that serves as evidence of the administrator’s authority.

What is the Attestation of Will? Attesting means signing a document to testify the signature of the executants. Therefore an attesting witness signing before the executants have put his mark on the Will, cannot be said to be a valid attestation. Both the witnesses must sign in the presence of the testator, but it is not necessary that the testator has to sign in their proximity. Further, it is not essential that both witnesses have to sign at the same time. It is also not necessary that the attesting witnesses should know the contents of the Will.

Pratik Harsh
[email protected]

Founder and Partner at Vidhinyas Solicitors & Associates He specializes mainly in matters related to Intellectual Property Law, Family Disputes & Commercial Contracts. He is skilled in IPR filings, Legal Documentation, and conducting corresponding legal formalities. He is experienced in conducting and preparing for seminars, client presentations, and negotiations.

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