Wills in India- by Vedant Karia at LexCliq

 Wills in India- by Vedant Karia at LexCliq

Property cannot exist without an owner. Upon death, a person's property must be vested in someone, and this act is called succession. Succession law is divided into testamentary and intestate succession. The law of testamentary succession governs the disposition of a person's property. In the absence of a will, the law of intestate succession takes effect, and his property passes to his heirs. Because this piece is about wills, only testamentary succession (or succession by will) will be examined.

A will is a legally binding document that specifies how property will be distributed posthumously.

Wills are governed by the Indian Succession Act, (ISA) 1925, which stipulates in Section 58 that the law applies to everyone except Muslims. 

Some characteristics are:

1. There must be an intention for the testament to take effect after the testator's death;

2. It is a legal declaration of intent concerning property (the declaration is not valid if the forms and formalities prescribed by law are not followed); 

3. The declaration concerning property must involve a disposition of property, not merely the appointment of a successor; 

4. A will can be amended or revoked by the testator. This is accomplished through the use of a device known as a codicil (This means that a contract holding a particular will to be the last will or preventing it from being revocable is invalid).

A testator can appoint an executor (a person charged with carrying out the will), or a competent authority can appoint an administrator (to oversee the deceased's assets).

The Indian Succession Act allows anyone of sound mind who is not a minor to make a will. The concept is that a person can be a will if they understand what is written and the nature and consequence of the disposition. The responsibility of showing that a creator of a will did so freely and when capable rests with the maker of the will. A legitimate will is one created when a person is typically insane but has occasional outbursts of insanity. The Indian Minority Act of 1875 defines a minor.

An unprivileged will is one that does not include a beneficiary. Privileged wills are those made by military personnel on an expedition or in actual combat, and can be made orally. Given the risks of premature death and the lack of time and resources to prepare written wills, a relaxation of formalities has been planned for them. Unprivileged wills are those that anyone can generate except privileged wills. A privileged will must first be in writing to be executed. The only requirement is that the language be comprehensible and clear. The testator must sign or affix his mark to the will, or have it signed in his presence or direction. Two or more witnesses must attest to the testator's assent stated by signing the will. According to Section 18 of the Registration Act, a will does not have to be on stamp paper to be registered. The burden of proving an oral will is very high, thus anyone attempting to do so must provide highly convincing evidence.

Any person who is capable of holding property can be a will’s beneficiary. A will can benefit a company, a juristic person, a minor, or a person of unsound mind. The only constraint on property that can be disposed of by a will is that the testator must be capable of doing so. This means the property must be owned. Concerning ancestral property, Section 30 of the Hindu Succession Act permits a Hindu to give up his part in coparcenary property in his will, which a Hindu may not do in other circumstances.

Vedant Karia