An overview of will under Indian Succession Act, 1925
A legal declaration of a person’s intention to give his/her property to another person who may be or may not be a legal heir is called a will. A will takes effect after the death of a person. It is in a document form. At the time when the maker is competent to dispose of his property, a will can be altered or revoked.
Indian Succession Act, 1925
The provisions under the Indian Succession Act, 1925 deals with a will made by any Hindu, Buddhist, Sikh or Jain in India. Muslims are not bound by this act; disposing of their properties takes place by the Muslim Law only.
Eligibility to make a will
A person can make his/her will only if he/she is:
- Sound mind
- Not a minor
A deaf and dumb person can make a will only if he/she can understand the meaning and purpose of a will.
An ordinarily insane person can make a will during that interval of time when he/she was of sound minds.
Any person, who is not in a state of soundness caused by either illnesses intoxication or anything, cannot make a will.
Execution of a will
A will can be executed by any person who is not a soldier, and not an expedition or not engaged in warfare, or not an airman so employed or engaged, or not a marine at sea.
The process to execute a will
- The maker of the will have to sign the document or fix his mark, or it can be signed by another person to whom the authority is given, in the presence and direction of the will-maker.
- The mark or the signature should be placed clearly, as it should show the intention of the doer to give effect to the writing as a will.
- The will have to be attested by at least two or more witnesses. Each of the witnesses should be among the people who were present at the time of signing, making a mark of the will, by either the maker or the person to whom the authority has been given.
- There is no particular form of attestation of witnesses. But, all the witnesses will sign the will in the presence of a testator—however, it not a compulsion for all witnesses to sign and be present at the same time.
Declaration of a will
Kind of property that can be disposed of by a will
Any kind of movable property can be disposed of by a will.
The beneficiary of a will
Any person can be a devisee of a will, be it a minor, a lunatic, a corporation, a Hindu deity or any other juristic person.
Restrictions of a will
Certain restrictions have been imposed in the Indian Succession Act, 1925 to make a will. They are:
- Any property of a will-maker cannot be transferred to any person by any particular description, who was not into existence at the time of the testator’s death. At the time when a bequest (property given by a will) is made to a particular description, it is a must for him/her to be in existence at the time of the testator’s death. In a condition, where it does not happen, the bequest will be void.
It is noteworthy that bequest to a person who was not in existence at the time of the testator’s death, subjects to a prior transfer of property. As mentioned, in a condition when the descriptive person does not exist at the time of testator’s death, the bequest will be void. However, it will not be void unless the bequest compromises the whole of the remaining interest of the testator in the thing is bequeathed.
- Another restriction that imposed on a will by the Indian Succession Act, 1925 is that if the bequest is done to create perpetuity. No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator’s death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.
- One more restriction on a bequest by the Indian Succession Act, 1925 is that any kind of transfer cannot be done to any class of people who comes under above-described rules.
- Any bequest done after a failure of the bequest done in the way mentioned in the above restrictions is also restricted in the Indian Succession Act, 1925.
- Another restriction on a bequest of a property has been imposed if the effect of the same occurs for the direction of accumulation. If in a will, it is directed that the income-generating from any kind of property shall be accumulated, wholly or in part during longer than a period of eighteen years from the death of the testator, such kind of direction shall be implied as void to the extent to which the accumulated period is directed to aforesaid period. Also, at the end of eighteen years period, the income and the property will be disposed of as if the accumulation period has been directed to make has elapsed.
However, the restriction will not be applicable to the accumulation is done for the purpose of:
- Debt’s payment of the testator or any other person who has been taking any kind of interest under the will
- Portion’s provision for children or the testator’s remote issue, any other person who has been taking any kind of interest under the will
- The maintenance or preservation of any property that has been bequeathed and direction is made accordingly. This rule implies that the accumulation of income obtaining from any property bequeathed has to come to an end or to be determinable on the beneficiaries, who are within the perpetuity period attaining vested interests. In case the will’s direction for accumulation exceeds 18 years, it will make the direction void, to the extent of 18 years’ period. As per the directions of the will, the property and the income will be payable at the end of 18 years. This rule is also not applicable in cases where a will’s direction is for payment purpose of testator’s debts or of any person taking interest under the will, or for any child/children’s raising portion or for maintaining and preserving and testament’s houses and charities.
Revocation of a will
In these following manners, a will can be revoked:
- Revocation by the execution of a subsequent will
- Revocation by a writing declaration with an intention to withdraw the will
- Revocation by burning the will papers
- Revocation by tearing the will papers
- Revocation by otherwise destroying the will papers
It is noteworthy that once a will is revoked by any of the means, it will become non-operational.
Loss of a will
- In case a will is lost, it will be considered to be revoked.
- In case the will was last seen with the testator, and after his/her death, it could not be found, it will be.
Registration of a will
The registration of a will is not a compulsion. Nevertheless, it is the will of the testator to get it registered or deposit to the registrar with a sealed cover. There is no particular time limit given for the registration of a will.