The testament or a will of an Indian is governed by the Hindu Succession Act (for Hindus) and the Indian Succession Act, 1925 for others. Testamentary succession occurs when a person dies leaving behind the property undistributed and to be distributed among members of the family and others by creating a will. A testament or a will is a legal document that expresses the testator’s wish as to how the property should be managed and divided after his demise.
According to Hindu Law, any male or female can make a Will to transfer his or her property or assets to anyone. The Will is treated as valid and enforceable by law. Section 30 of the Hindu Succession Act deals with testamentary succession, according to which “any Hindu male [or female] may 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 time being in force and applicable to Hindus”.
According to the provisions of Section 2(h) of Indian Succession Act, 1925 a “‘Will’ is a legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death”. A Will has been defined in Corpus Juris Secundum as “the legal declaration of a man’s intention, which he wills to be performed after his death, or an instrument by which a person makes a disposition of his property to take effect after his death.”
- Why is making a Will important?
- It is easier for the family members to figure out and distribute everything when a person dies, leaving behind a Will. In absence of a valid Will, the distribution of property becomes more time consuming and hectic.
- It can help reduce the amount of Inheritance Tax that might be payable on the value of the property and money one leaves behind.
- It is helpful when a person dies leaving behind the wife and children who were solely dependent on him financially.
Types of Will
- Privileged Will: The persons who are competent to make a Privileged Will are: Soldier/airman employed in an expedition or engaged in actual warfare; and (b) mariner at sea. It can be written or oral. A Privileged Will written by the Testator need not be signed, and if the same is signed it does not need attestation by witnesses. It is a special will which is made in extraordinary circumstances like war or dangerous expedition.
- Unprivileged Will: It can be made by every person who is not entitled to make a Privileged Will. Some of the important components of a unprivileged will are:
- It must be in writing.
- It must be signed by testator in the presence of witnesses.
- It must be signed by two or more witnesses in presence of the testator.
- Formal Wills: This is the simplest Will which one can make by typing out one’s wishes and signing the document along with two witnesses. However in order to make a will you need to be of sound mind.
- Handwritten Wills: It is also known as “holographic will”. It needs to be in one’s handwriting, and doesn’t have to be witnessed.
- Oral Wills: These are valid in only few places and only under some limited circumstances. Therefore, Oral wills are unusual and uncertain.
- Joint and Mutual Wills: It purports to distribute the property of two or more people, usually a married couple upon the death of both of them. Joint will cannot usually be changed unilaterally by one of the couple, after the death of the other.
- Conditional and Contingent Wills: Conditional wills will only come into effect when a certain act happens or a pre-condition is fulfilled.
- Statutory Wills: It contains standard terms provided by law. These are usually made without a lawyer by using the state’s fill-in-the-blank forms.
- Self-Proving Will: A self-proving will must be notarized, and certifies that the witnesses and testator properly signed the will.
- Advance Medical Directives (Living Will): A living will, unlike all the other types of will, does not distribute property after the death of the testator. It instead provides instructions on the type of medical treatment one wishes to receive if they become too ill to communicate.
- Codicil to the will
A codicil is an instrument which is made in relation to a will when the testator wants to make some alterations/explaining or adding to its dispositions to the Will, keeping the rest of it intact. It can be executed like a Will. However, neither a Will nor a codicil is unalterable or irrevocable. If there are any objections raised by any of the heirs a citation needs to be served calling upon them to consent and has to be displayed in the court. If no objection is received, the probate will be granted, only after this that the Will comes into effect.