How to make a Will? Myths and Concerns and the Law

Q.1 Why should I plan my Will?

Law and mythology are interconnected.  There is a famous saying-

Indians however are quite hesitant to plan about Will in early stages of life. The task of making Will is still postponed at times till last in India even though it is simplest. The property that you have earned should be distributed as per your wishes to rightful heirs and to ensure the same, estate planing is important. An estate plan is the process of planning for the orderly administration and disposition of moveable and immovable property after the owner dies. It can include cash, clothes, jewelry, cars, houses, land, retirement, savings accounts and so on.  Estate planning in India can be done by making a will, setting up a trust or making a nomination and even life insurance. You need an executor someone you trust to execute the will on your behalf.

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 and applicable to Hindus.

Q.2 What is Estate?

Anything under the  property that we own. This will include all your possessions, your investments, bank accounts, Fixed Deposits, businesses and any property you own (moveable and immovable).

Q. 3 What exactly is probate? What is Letter of Administration?

The first term when we go to lawyer is  “probate“. What does it means? It is the process of legally establishing the validity of a Will. According to section 2(f) of the Indian Succession Act, 1925 Probate refers to a copy of the Will that is certified by the seal of a court of competent jurisdiction. It is a judicial process through which the validity and authenticity of a Will is determined in a court of law. The executor of the Will, beneficiaries, and value of the estate are determined. Probate helps the executor to receive a certification from the court that he is duly authorized to administer the estate of the testator under the Will. Even a beneficiary can be appointed as an executor under the will.

The difference between Probate and Letter of Administration is that Probate is granted to an executor nominated under the will. Whereas, if a Will does not nominate an executor, the beneficiaries of the deceased will have to file an application for Letter of Administration. This Letter of Administration would grant the same administrative rights to the beneficiaries that an executor would have enjoyed. However, If a person dies intestate, then an applicant seeking administrative rights pertaining to the deceased estate files for Letter of Administration.

Q.4 What are the provisions of law governing transfer or property?

Q.5 What is a Will?

Ans: Will is a legal document made by an individual which details distribution of his assets to relatives and beneficiaries after his death. Will is defined in the Indian Succession Act 1925 Section 2 (h) as “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.”. The property is therefore distributed after his death. It carries the details of beneficiary and the executor to manage until final distribution. 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. A Will is never an agreement or contract or settlement. It is for this reason that the beneficiaries of a Will should not be parties to the Will.

Q.6 How many times can a person change Will?

A person can change the will any number of times. He can also revoke the will anytime.

Codicil is a document which can help testator to make a few changes to the Will, without changing the entire Will. The codicil is executed in a similar way as the Will about which we talk in this questionaire. Please remember that Will or codicil is not unalterable or irrevocable. They can be altered at any time. The Codicil as per law can explain, alter or add to its dispositions, and shall be deemed to form part of the will.If the Will is revoked by the testator himself or declared void by a competent court, then the codicils attached to it also become void as the addendum itself is a continual document and hence with a change in the base document the continual document loses relevance.

Q.8  When does the person gets the property mentioned in Will?

A Will becomes enforceable only after the death of the testator. It gives absolutely no rights to the person who inherits until the death of the testator. It has no effect during the lifetime of the testator.

Q.9 What is a succession certificate?

A Succession Certificate is granted by the Court to any heir to represent the deceased for the purpose of collecting debts and securities due to him/her. The certificate does not make the heir (who obtains Succession Certificate) owner of any amount collected by him/her. It only furnishes him/her with an authority to collect the debts and allows the debtors to make payment without incurring any risk.

Q.10 What is court fees payable for obtaining probate?

Q.11 Do I need NOC to sell the property for which I am owner by way of Will?

Based on the assumption that you are now the sole legal owner of the house pursuant to the Will of your father, this means that you may dispose of the house to any person or persons you deem fit at your discretion, which can also be to one of your children, while excluding your other child, by way of a Will. If you are the sole and absolute owner of the house inherited by you from your father as aforesaid, then you are also entitled to sell the house to any third person. You will not need the consent or “no-objection” of your children in order to do so. If, however, you hold the house along with any other owner(s) as tenants-in-common, you are only free to sell your share in that house to any person.

Q.12 What happens to Sole proprietorship’s after the death of the proprietor?

Sole proprietorships are loose business structure because of no distinction between the owner and their business. Under Indian law, a sole proprietorship does not have a perpetual succession, which means the business will immediately come to an end, the moment the sole proprietor dies. As a result, the business goes away once the owner dies. The executor of an estate then goes and cancels business licenses, if any and registration, pays of all taxes/liabilities are paid. Where the sole proprietor had made a will, the executor /administrator will follow the will and accordingly deal with the assets and debts.  However, when there is no will, the assets will either be sold to any of the family members, upon the wish of the beneficiary or executor/administrator. In case a beneficiary buys the business of the sole proprietor, then he may either choose to continue the business with the assets under his name or he might also sell the business to any of the family members or might elect some other person to operate it or might even choose a partner for running the same.

Q.13 What happens to partnerships when an owner dies?

The death of a partnership owner usually results in the dissolution of business activity unless there was some sort of formal partnership agreement that was signed. This gives an opportunity for those involved to work through the scenarios of someone passing away, and also lets everyone decide if they would want to keep the business open if an owner dies or regarding provision of LR stepping in.

Q.14 What happens to the Insurance Policy?

Insurance policy is treated as an estate of the deceased policyholder. Legal heirs have a right over the policy as long as the assets of the deceased policyholder devolve upon them. However, in life insurance, there is a concept known as beneficial nominee. If an immediate family member (parents, or spouse, or children) is made the nominee, then the proceeds will go to the intended person. Legal heirs will not have any claim on the money. If the nominee is not survived by the insured, the proceeds will go to the legal heirs. A nominee exists only for convenience purposes so that the proceeds can be transferred to the legitimate beneficiaries.

Q.15.  What is the role of Nomination?

If you have a fixed deposit, shares or mutual funds you need to make a nomination, where you state who will get the money lying in these accounts on your death. The person you appoint is the nominee. The nominee basically someone you trust transfers your wealth/investments to your heirs (Children).  Nomination is done mainly for shares/mutual funds, life insurance policies or land and property. If you want to leave a huge legacy for a disabled child you must take up a whole life insurance policy where on the policyholder’s death, the disabled child (beneficiary) gets the sum assured as well as the accrued bonus.

Q.16 Why should I make the Will? Under what circumstances Will done is not applicable?

It gives an opportunity to have freedom to distribute the one’s property the way one desires, if the will is made before death (testamentary will). If I die without making a will the property will be distributed for a Hindu as per the Hindu Succession Act 1956 and for a Muslim as per the Muslim laws which may or may not be the desire of the testator (person making the will). The formalities are minimum and does not cost much. A Will, obtained by force, coercion or undue influence is void Will as it takes away the free agency of the person. 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. 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.

Q.17. Who can make the Will?

Section 59. Of the Indian Succession Act 1925 provides that every person of sound mind not being a minor may dispose of his property by will. Further, a married woman may dispose by will of any property which she could alienate by her own act during her life. Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it. A person who is ordinarily insane may make a will during 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. So, the person should be major and of sound mind for qualifying to make the will, which means he knows what he is doing and is fully responsible for his act, as it affects future generations. The burden of proof is on testator.

Q.18 Which property may be bequeathed by the Will?

A person can will that property which he has earned himself. Since under Mitakshara , he has no absolute right on Ancestral / coparcenary / joint family property, he cannot will such property. But under Dayabhag , he can will the coparcenary interest by will or gift. A Hindu female could will her Stridhan” under certain conditions,Muslim Will laws are similar but has certain conditions on the amount of property to be willed.

Q.19 How to make a Will?

By the Indian Succession (Amendment) Act 1926, all Will are required to be in writing. A testator can write a Will, for which no format is prescribed. Standards formats are available on the web yet it is . Still, it is advisable to take help from an Advocate, who will draft a legally clear and uncomplicated will having least chances of challenge / dispute. The testator should sign the will. At least two independent witnesses must sign the will.

Q.20 Is registration of the Will compulsory?

Registration of Will is a safe practice: Under section 18 of the Registration Act 1908 the registration of a Will is not compulsory. The Supreme Court in Narain Singh v. Kamla Devi has held that mere non-registration of the Will an inference cannot be drawn against the genuineness 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.

Q.24 What is probate of the Will and why it is done?

Ans: Probate of a will is certification of the will by a competent Court. This enables the executor of will to distribute the willed properties to the beneficiaries. The executor of the will is generally appointed by the testator for this purpose. Otherwise, the beneficiaries can seek Letter of Administration from the competent court for distribution of willed property as per the will.

Q.25 Who can be disqualified from inheriting the property?

Under Hindu Law Murderer disqualified:A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens

Q.26 Can the Will be bequeathed in favour of unborn?

Ans: Only with the condition that at the time of death the unborn at the time of making will, would have come into being. The condition is that it comprises the whole of the remaining interest of the testator in the thing bequeathed. This is in synchronization with Transfer of Property Act 1882.

Q.27 Can the Will be conditional?

Ans: Yes, if the condition is legal and not impossible. e.g. You cannot ask a beneficiary to do an illegal act to be benefited from the will. Nor you can ask to scale the Mount Everest in a day. Rule against Perpetuity applies.

Exclusions – The Testator cannot give any property that is joint family property or ancestral property that is common to many other members too. Such a Will becomes void. Guardian for Minors – If the Testator wishes to give his property to any beneficiary who is a minor, then definitely he should appoint a guardian who will take care of the minor’s property till the minor attains majority.

Q.28 Period of validity of Will?

A will is valid after the death of the testator and there is no bar to its enforcement. But to challenge the will time period is just for 12 years and if a person wants to challenge it after 12 years he has to give a reason for the delay. Once the contents of the will are carried out the will is considered to be executed. There are no specific laws regarding longevity/ period of time for the will in Indian law. Once the period of 12 years is passed, the will is said to be Permanent.

Q.29 How does a will work after the death of the testator?

A will is enforced after the death of the testator and for enforcement of will, the beneficiary needs to get a probate i.e order for execution of will where probate is compulsory. You have to prove to the court that the person making the will have made it with free consent and was not under any kind of pressure. This probate from a court of law is required in case of unregistered will and when the property is to be transferred to a person. This probate is required to protect any kind of fraud or other miscreprency in the enforcement of will. To obtain a probate a person needs to prove the authenticity of the will and it is made without any undue influence.  Further in the case of registered will under the Indian Succession Act, 1925 there is no need for probate as the will is already and it is known and proven that it is the last will of the person and there is no element of any kind of fraud in it.

Q. 30. Can a will expire?

A will that is made as per proper laws and provisions does not expire. So we can say that So long it is not revoked by the executant himself or subject matter of the will, lost its existence before passing to the beneficiary or a court of law declares it invalid unlawful null, void, and unenforceable.

Q.31 What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?

Typically, for the execution of an Indian will to be valid, the following conditions must be satisfied:

• The place of execution stated in the will must be uniform;
• The will must be attested by at least two witnesses; and
• Each of the witnesses must see the testator sign or affix his or her mark to the will or must see some other person sign the will in the presence of and by the direction of the testator; and receive from the testator personal acknowledgment of his or her signature.
• The testator and the witnesses must sign the will; the witnesses must sign in the presence of the testator.

Under good practice:

• it is preferable for the testator and the witnesses to initial all pages of the will; and
• the testator must review/revise the will annually.

The Indian Succession Act stipulates the cases where a probate is mandatory in order to enable the transmission of the testator’s assets. The provision unequivocally states that no right as an executor or legatee can be established in any court unless a probate or letters of administration has been obtained of the will under which the right is claimed if:

• the will is prepared by a Hindu;
• on or after September 1 1870; and
• within the territories of the erstwhile presidency towns of Calcutta, Bombay and Madras (now Kolkata, Mumbai and Chennai) or to the extent that the will relates to immovable properties situated therein.

If a probate is required, then the Indian Succession Act further stipulates the detailed procedural formalities that should be complied with.

Unless registered with the sub-registrar or contested in a court, a will or probate is not publicly available.

Q.32 What rules and procedures govern:

(a) The appointment of estate administrators?

The Indian Succession Act provides for detailed rules for the appointment of an administrator of the deceased’s estate, both in case of testamentary and intestate succession. In case of wills, a probate shall be granted only to an executor who is named expressly or by necessary implication, so long as the executor is competent to contract in case of an individual or a qualified company. In the absence of an executor, a universal or residuary legatee may be admitted proving the will. If no such person is available, then the intestate succession laws applicable to the testator apply.

(b) Settlement of the decedent’s debts and payment of any taxes and fees?

The Indian Succession Act lays out the cardinal rule that all the debts, dues, taxes, fees and expenses must be paid from the estate of the deceased before a distribution can be made to the heirs.

Q.33 Can the Will be bequeathed in favour of unborn?

Only with the condition that at the time of death the unborn at the time of making will, would have come into being.

Q.34 How many Will are required to make for property in different states?

Q.35  Can one person prepare a Will for a joint property?

Q.36.  Can a beneficiary of a Will act as Witness?