Law of Wills in India

Property Law Research Paper LAW OF WILLS IN INDIA Submitted By-Ishani Mehta BA. LLB -2011 theatrical role-A (22 November, 2012) CONTENTS- * Definition * recognize Terms * Different types of leads * Essential Clauses of a leave behind * Restrictions or Limitations for making of a get out chthonic The Indian Succession Act 1925 * Registration of a impart * Property, which toilet be, disposed of by give * Principals of rate able abatement in case heirs do non give consent. * Probate of a will * Muslim laws on wills in India * Revocation of a will * Revocation of a will by Muslims * Codicil * Who shadow be a devisee under a will?Definition go away is the legal declaration of a individuals intention which he wishes to be performed after his death and champion time the bequeath is do by the testator it usher out simply be revoke during his lifetime. OR Will means the legal declaration of the intention of a testator with respect to his topographic post, which he desire s to, take action after/*appointment of Executor by the testator, the Court whitethorn appoint a person called Administrator to execute thee will. OR The term Will is defined under persona 2(h) of The Indian Succession Act, 1925, means the legal declaration of the intention of a testator with espect to his piazza which he desires to be carried into effect after his death. A testator is authorized with a power to appoint all person as beneficiary of his Will whereas Section 5 deals with the law regulating succession to deceased persons moveable and immovable plaza. My interpretation of a will- A Will or volition as it is often called is a legal declaration by which the testator names one or more persons to man period his/her e assert and provides for the transfer of his/her property at the time of death. A Will can be made by anyone who is above 21 years of age in India.It can be seen as a statement made by a testator in the written form stating the manner in which his state/ property mustiness be distri besidesed after his death. A Will being a testamentary document comes into effect after the death of the testator and if the person dies without writing any Will then he/she is said to be have died intestate. The person in whose favour the testator bestows the benefits is called the beneficiary or legatee. A Will is new(prenominal)wise known as a Testament. KEY TERMS- * Codicil- Codicil is an instrument math in relation to will. It is a part of the will. Abatement of Legacies- When a testator bequeaths more than one third of the property, and the heirs refuse to give consent, it is to be adjusted accordingly. * Lapse of Legacy-If the Legatee does not survive, the bequest (Property under will) is distributed as if there is no will. DIFFERENT TYPES OF WILLS- A testator who has right to move in a Will for the future benefits of his family members which will take effect after his death, the there atomic number 18 certain types of Wills which has to be l ooked into 1. Privileged WillsAs it can be understood from the word privilege provided to certain persons.A privileged Will is one which is made by any soldier, airman, navy persons, mariner who are willing to dispose of their estate during their course of employment. A soldier includes moroseicers and all other rank officers of service but does not include a civilian engineer employed by the army, having no military status. A soldier while making an instrument of Will must have attained the age of 18 years and where a will made by the soldier is in the oral form, will be valid solitary(prenominal) for a calendar month though a written Will always remain operative.A privileged Will may be revoked by the testator by an unprivileged Will or codicil, or buy any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give severity to a privileged Will, or by the burning, tearing or otherwise destroying the similar by the testator. 2. U nprivileged WillsWills executed according to the provisions of Section 63 of the Indian Succession Act, 1925 are called Unprivileged Wills.An unprivileged Will is one which is created by every testator not being a soldier, airman, mariner so employed. An unprivileged Will like Codicil can be revoked by the testator only by another Will or by some writing declaring an intention to revoke the same and to be executed in the manner in which an unprivileged Will can be executed under the Act or by burning, tearing or destroying of the same by the testator or by some other person in his presence and by his directions with the intention of revoking the same. ESSENTIAL CLAUSES OF WILLS-There are certain characteristics which should be included in the instrument of will such as- The Name of the TestatorThe name of the testator should be mentioned accurately without any error in initials, spelling or grammatical mistake so that it will not affect the instrument of Will. The name of the testa tor can also be keen by looking into his birth certificate or any school certificates. Right to Appoint LegateeThe testator is having absolute right to appoint any person as a legatee or beneficiary of a Will and legatee should execute the Will carefully and in accordance with the law. To Take Effect after dyingA testator who is having power to make the Will during his lifetime, but it will take effect only after his death. A gift made by a person during his lifetime and will take effect during his lifetime, cannot be considered as a Will. Revocability under the LawIn general a Will made by the testator can be revoke at any time during his lifetime and testator can choose any other person as his legatee. There may be chances where a testator wishes to bring some alterations in the Will then he can make some needful amendments in the prepared Will which is otherwise called as Codicil.A third party can not file a civil suit against the testator on the ground of cancellation of t he Will. A Will made by the testator may be irrevocable in some cases where an agreement is entered into inappropriate to the Will, may bind the testator. Intention of the Testator supremeThe testator of the Will has right to revoke Will at any time which can only be proved by the intention of the testator that whether he is intending to revoke the previous testamentary instruments made by him or he can state in his Will that This is my last Will then it can be presumed that all the earlier testamentary instruments has been revoked. The Declaration to be Last WillA person as testator has power to make declaration of Will innumerable times but it is always the last will of testator which will prevail. The words I declare this to be my last will quest not be stated in the instrument of the Will. Once the Will is made by the testator Inserting of words Last and Only will at the time of death it can be presumed that all the previous Wills will ticktock revoked and fresh Will has to be effected. Lost Subsequent WillMere loss of the original Will does not operate a revocation but it has to be inferring by the stringent evidence to prove its revocability and a testator must show the genuine reasons for the loss of the Will. Once it is proved that an original will is lost then Subsequent Will will be valid. Restrictions or Limitations for making of a will under The Indian Succession Act 1925 * transportation to person by particular description, which is not in existence at testators death. * Transfer to person not in existence at testators death progeny to prior bequest. Transfer made to create perpetuity. * Transfer to a class some of whom may come under above rules. * Transfer to take effect on failure of prior Transfer. * Effect of direction for accumulation. Registration of Wills It is not mandatory for a will to be registered but it is better if a will is registered because it has few advantages. * It can be proved easily. * Its authenticity cannot be quest ioned. * A certified copy is always available. * When- It can be registered in any registering offices in India at any time during the life time of the Will maker.The copy of the will can be obtained by the testator at any point during his/her life time and after his/her death that copy can be obtained by others by providing the proof of death of the testator. * Expenses- Will has an advantage that the cost incurred in making of it is negotiable. The estimated amount of making a will is 200-300 Rupees. whatever alteration in will whether addition or deletion or rectification can be done through a document called Codicil and this will not even out require the stamp trade. Note- A bill can be registered even after the death of the testator which may help the beneficiaries of the will to obtain bequeathed properties without hassles. According to the Section 18 of the Registration Act, 1908 the registration of a Will is not compulsory. Once a Will is registered, it is strong legal e vidence that the proper parties had appeared before the registering officers and the latter had attested the same after. The process of registration begins when a Will instrument is deposited to the fipple flute or sub-registrar of jurisdictional area by the testator himself or his authorized agent.Once the scrutiny of Will instrument is done by the registrar and registrar is well-to-do with all the documents then registrar will make the entry in the Register-Book by writing year, month, day and hour of such video display of the document and will issue a certified copy to the testator. In case if registrar refuses to order Will to be registered then testator himself or his authorized agent can institute a civil suit in a court of justice of law and court will pass regulation of registration of Will if court is satisfied with the evidence produced by the plaintiff.A suit can only be filed within 30 days after the refusal of registration by the registrar. If the testator willing to withdraw the Will after the process of registration then a sufficient reason has to be given to registrar, if satisfied he will order for the registration of Will. Property, which can be, disposed off by Will Any movable or immovable property can be disposed off by a will by its owner. Under Mitakshara Law, a Hindi coparcener could not dispose off his undivided coparcenary property by will, even if other coparceners consented to it.But section 30 of Hindu Succession Act, 1956 provides that any Hindu may dispose off by will or other testamentary disposition any property, which is capable of being so, disposed of by him in accordance with law. The interest of a male Hindu in a Mitakshara coparcenary property is deemed to be property capable of being disposed off by him. PROBATE OF A WILL- It is the copy of the will which is given to the executor in concert with a certificate granted under the seal of the court and signed, by one of the registrars, certifying that the will has been proved.The application for probate shall be made by implore along with copy of last Will and testament of the deceased to the court of competent jurisdiction. The copy of the will and grant of administration of the testators estate together, form the probate. It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator. A probate is obtained to authenticate the validity of the will and it is the only proper evidence of the executors appointment.The grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off which did belong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator. Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased. Muslim laws on wills in IndiaA Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property. The Mohammedan Law restricts a Muslim person to bequeath his whole property in a will and allows him to bequeath 1/3rd of his estate by writing will, which will take effect after his death. A will may be in the form of oral or written if the will is in writing need not be signed if signed need not be attested.Acc to Shia Law if served bequests are made through a will, priority should be given to determination by the order in which they are mentioned a bequest by way of will. A Will Can be made by a person who is of sound mind, major and possessing a absolute title, in favour of a person who is capable of holding property except unborn persons and heirs. The revocation of will is possible only if the subsequent Will is made by t he testator. A Muslim person who is allowed to bequeath 1/3rd of his estate, he can exceed its limit on testamentary power of 1/3rd to 1/4th in case where heirs gives consent or only heir is husband or wife.Revocation of a will A Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will. A Will can be revoked by testator of the Will at any point of time which can be categorize into two aspects such as- Voluntary RevocationA testator who wishes to revoke his original Will which is made by him on a stipulate date and time, he can make revocation of the will himself by writing a subsequent Will or codicil duly executed and by destruction of the previous will, means by burning, tearing, destroying or striking out the signature of the original instrument of a Will. Involuntary RevocationAccording to the Section 69 of the Indian Succession Act, 1925 which deals with revocation of will by the testators marriage, however this provision does not apply to Hindus. Section 57 of the Indian Succession Act clearly states that a testators marriage will not make the Will invalid. Revocation of a will by Muslims The testator may revoke his will at any time both expressly or impliedly. The express revocation may be either oral or in writing.The will can be revoked impliedly by testator transferring or destroying completely fixing the subject matter of the will or by giving the same property to someone else by another will. Codicil Codicil means an instrument made in relation to a will and explaining, fastener or adding to its dispositions and shall be deemed to form part of the will. The codicil is generally made to make slight changes in the will, which has already been executed.A codicil cannot alter a will more than what is necessary to carry out the testators intention as evidenced by the will and the codicil. Codicil means an instrument made in relation to a will and explaining, altering or adding to its dispositions and shall be deemed to form part of the will. The codicil is generally made to make slight changes in the will, which has already been executed. A codicil cannot alter a will more than what is necessary to carry out the testators intention as evidenced by the will and the codicil.Who can be a devisee under a will? Any person capable of holding property can be a devisee under a will and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person can be a devisee. Sections 112 to 117 of Indian Succession Act, 1925 put some restrictions on the disposition of property by will in certain cases. Dispositions of property by will in some cases have been declared void.