What is a will and when is it required?
A will is primarily a legal declaration which marks the intention of the person making the said will, with respect to his property and other possessions, which he or she desires to bequeath to respective individuals as per his or her terms. It is a unilateral document which only takes effect after the death of the person making it. Hence, a will can be revoked or altered by the maker prior to his or her demise provided that they are mentally competent to do so.
Who is competent to make a will:-
A will is a document which has to be made by individuals who comply with certain specifications pertaining to their mental, emotional and physical capacity and thus these can be demarcated below for further reference:
Execution of a Will
Every individual, not being a soldier employed in an expedition or engaged in warfare, or an airman so employed or engaged, or a marine at sea shall be capable of executing his own will.
The individual shall sign or fix his mark to the will himself or he must make sure that it shall be signed by some other person in his presence and under his direction.
However, certain pre-requisites must be kept in mind prior to doing this, which have been enumerated below:-
Declaration of intention
There are certain declarations pertaining to property and beneficiaries which have been enumerated further for explaining how various declarations are made within a will.
Rules pertaining to inheritance in the absence of a will under the Indian Succession Act
The Indian Succession Act, 1956 is an Act of the Parliament of India enacted to amend and codify the law relating to intestate or unwilled succession, amongst Hindus, Buddhists, Jains, and Sikhs. The Act lays down a uniform and comprehensive system of inheritance and succession consolidated within one Act. Further, this act has abolished the Hindu woman's limited estate. Therefore, under this Act, any property possessed by a Hindu female is to be held by her as her absolute property and she is therefore given full power to deal with it and dispose it off via a will as and when she likes.
Certain aspects of this Act had been amended in 2005 by the Hindu Succession (Amendment) Act, 2005 and its references have been enumerated below.[
A person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect,
(i) A has left no will. He has died intestate in respect of the whole of his property.
(ii) A has left a will, whereby he has appointed B his executor; but the will contains no other provision. A has died intestate in respect of the distribution of his property.
(iii) A has bequeathed his whole property for an illegal purpose. A has died intestate in respect of the distribution of his property.
(iv) A has bequeathed 1,000 rupees to B and 1,000 rupees to the eldest son of C, and has made no other bequest; and has died leaving the sum of 2,000 rupees and no other property. C died before A without having ever had a son. A has died intestate in respect of the distribution of 1,000 rupees.
Application as per religion:
However if two persons who are Hindus get married under the Special Marriage Act the above provision does not apply and they are governed by the Hindu Succession Act.
Succession for Hindus
In the case of Hindus, the laws relating to testamentary succession are applicable as per the Indian Succession Act, 1925. However, the laws relating to the intestate succession are applicable as per the Hindu Succession Act, 1956. In the case of intestate succession for Hindus, the Indian Succession Act, 1925 is not applicable due to the existence of the system of Hindu Undivided Family or HUF as per the Hindu Law. Thus, the Hindu Succession Act, 1956 came into existence in order to deal with the succession as per the Hindu law and culture.
Succession for Muslims
In the case of Muslims, the Indian Succession Act, 1925 is not applicable to both the testamentary and intestate succession. In their case, the succession is on the basis of the Quran and other sources.
Hedaya or Fatawa Alamgiri is the guiding authority on the subject of wills for Muslims. As per the Muslim Law, the properties of the deceased shall be applied in the payment of the following and in the order below:
Succession for Sikhs
The Indian Succession Act, 1925 is applicable to laws relating to the testamentary succession in the case of Sikhs. However, in the case of intestate succession of Sikhs the Hindu Succession Act, 1956 is applicable.
Christian Succession Act
In the case of Christians the laws of Indian Succession Act, 1925 is applicable to both testamentary and intestate succession.
Succession for Jains
The Indian Succession Act includes Jains and treats them as Hindus. Thus, the provisions applicable to the Hindus are also applicable to the Jains. The testamentary succession laws are applicable as per the Indian Succession Act, 1925 while the intestate succession laws are applicable as per the Hindu Succession Act, 1956 to the Jains.
Succession for Buddhists
The testamentary succession laws are applicable as per the Indian Succession Act, 1925 while the intestate succession laws are applicable as per the Hindu Succession Act, 1956 to the Buddhists.
Distribution of property:
The property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules given below.
It is pertinent to note that a widow is not entitled to the provision hereby made for her if, by a valid contract made before her marriage, she has been excluded from her distributive share of her husband's estate.
Where intestate has a left widow and lineal descendants, or widow and kindred only, or widow and no kindred.
Where the intestate has a widow-
Lineal descendants : These mean only those descendants who are born out of lawful wedlock.
Where intestate has left no widow, and where he has left no kindred:
Where the intestate has left no widow, his property shall go to his lineal descendants or to those who are of kindred to him, not being lineal descendants, according to the rules governed under the Act and, if he has left none who are of kindred to him, it shall go to the Government.
Rights of a widower.
A husband surviving his wife has the same rights in respect in respect of her property, if she dies intestate, as a widow has in respect of her husband's property, if he dies intestate.
Rules of Distribution (Children, Grandchildren Etc. )
The rules for the distribution of the intestate's property (after deducting the widow's share, if he has left a widow) amongst his lineal descendants are as follows:
Where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children.
Child or children- The word "child" does not include an illegitimate child, but only those born out of lawful wedlock. The words "any child" mean and include "children" as well.
Where the intestate has not left any surviving child of his own, but has left a grandchild or grandchildren and no more remote descendants through a deceased grandchild, the property shall belong to his surviving grandchild if there is only one, or shall be equally divided amongst all his surviving grandchildren.
In the same manner the property shall go to the surviving lineal descendants who are nearest in degree to the intestate, where they are all in the degree of great-grandchildren to him, or are all in a more remote degree.
Where an intestate has left no lineal descendants, the rules for the distribution of his property (after deducting the widow's share, if he has left a widow) are as follows:
If the intestate's father is living, he shall succeed to the property.
If the intestate's father is dead, but the intestate's mother is living, and if any brother or sister and the child or children of any brother or sister who may have died in the intestate's lifetime are also living, then the mother and each living brother or sister, shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate's death.
If the intestate's father is dead, but the intestate's mother is living, and the brothers and sisters are all dead, but all or any of them have left children who survived the intestate, the mother and the child or children of each deceased brother or sister shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate's death.
If the intestate's father is dead, but the intestate's mother is living, and there is neither brother, nor sister, nor child of any brother or sister of the intestate, the property shall belong to the mother.
Where the intestate has left neither lineal descendants, nor father, nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as may have died before him, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate's death.
Where the intestate has left neither lineal descendants, nor parent, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him.
In order to avoid the complications and consequences of intestate succession, the people in India should adopt to estate planning. Estate planning has multifold benefits such as, it avoids any dispute within the family, guarantees smooth transition of assets from the deceased to the heirs, protects the wealth of the deceased, promotes better tax planning etc.
Furthermore, for laws of inheritance and property which is to be applicable on NRI’s and more information on this, click here