Wills and Estates

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. In order to avoid the complications and consequences of intestate succession, the people in India should adopt estate planning This article discusses the eligibility and execution of making a will and sheds light on various personal succession laws in India.

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:

1. Only an individual of sound mind shall be permitted to make a will.
2. Any person who decided to make a will shall not be a minor i.e. he must be above the age of 18 in India.
3. Individuals who suffer from certain disabilities must be provided with sufficient assistance while making a will and must know exactly the repercussions of doing so. For example, any person who is blind, deaf or mute must know the contents of his or her will completely and must do so in full mental capacity.
4. In the instance of a person who is ordinarily insane but acquires sanity from time to time, the law may permit him to make a will only during such specific intervals of sanity.
5. No individual is permitted to make a will in a state of mind which is altered due to intoxication or illness or from any other cause which renders him incapacitated mentally.

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:-

1. The signature mark must be placed in a manner which makes it obvious as to giving effect to the writing as a will.
2. This will must be attested by two or more witnesses, both of whom should be present at the time when the testator signs or affixes his mark on the will or appoints another person to sign or affix his mark on his behalf. The primary motive is to ensure that the signing of each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witnesses be present at the same time, and no particular form of attestation is necessary.

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.^[

Intestate Succession

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,

Illustrations:

(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

1. Hindus, Muslims, Buddhist, Sikh, Jana- This part does not apply to the property of any Hindu, Mohammedan, Buddhist, Sikh or Jaina. Muhammadans are governed by Mohammedan Law of Inheritance and the Hindus Buddhists, Sikhs and Jainas by the Hindu Succession Act, 1956.
2. Parsis- The following provisions do not apply to Parsis.
3. Special Marriage Act- Notwithstanding anything contained in the Indian Succession Act with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under the Special Marriage Act and to the property of the issue of such marriage shall be regulated by the provisions of the Indian Succession Act.
   
   

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 Muslim Law, the properties of the deceased shall be applied in the payment of the following and in the order below:

1. Funeral and death bed charges.
2. Probate or letters of administration or succession certificate expenses.
3. Payment of any wages due for any services to any labourer, artisan or domestic servant for rendering of services to the deceased within 3 months just preceding his death.
4. Payment of any other debts of the deceased.
5. Legacies to a maximum of one-third of what remains after all the above payments
6. The remaining two-thirds shall go to heirs as on intestacy.
   
   

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 the 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 a widow and lineal descendants, or widow and kindred only, or widow and no kindred.

Where the intestate has a widow

1. If he has left any lineal descendants, one third of his property shall belong to his widow and the remaining two-thirds shall go to his lineal descendants, according to the rules which pertain.
2. If he left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow and the other half shall go to those who are of kindred to him, in the order and according to the rules which pertain.
3. If he has left none who are of kindred to him, the whole of his property shall belong to his 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 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:

1. Where intestate has left child or children only
   
   

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.

2. Where intestate has left no child, but grandchild or grandchildren
   
   

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.

3. Where intestate has left only great-grandchildren or remoter lineal descendants

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.

4. Where intestate leaves lineal descendants not all in same degree of kindred to him, and those through whom the more remote are descended are dead

• If the intestate has left lineal descendants who do not all stand in the same degree of kindred to him, and the persons through whom the more remote are descended from him are dead, the property shall be divided into such a number of equal shares as may correspond with the number of the lineal descendants of the intestate who either stood in the nearest degree of kindred to him at the time of his decease, or, having been of the like degree of kindred to him, died before him, leaving lineal descendants who survived him.

• One of such shares shall be allotted to each of the lineal descendants who stood in the nearest degree of kindred to the intestate at his decease; and one of such shares shall be allotted in respect of each of such deceased lineal descendants; and the share allotted in respect of each of such deceased lineal descendants shall belong to his surviving child or children or more remote lineal descendants, as the case may be; such surviving child or children or more remote lineal descendants always taking the share which his or their parent or parents would have been entitled to respectively if such parent or parents had survived the intestate
  
  

5. Rules of Distribution (No lineal descendants)

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:

1. Where intestate's father is alive

If the intestate's father is living, he shall succeed to the property.

2. Where the intestate's father is dead, but his mother, brothers and sisters are alive

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.

3. Where the intestate's father is dead and his mother and children of any of the deceased brother or sister are alive

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.

4. Where intestate's father is dead, but his mother is living and no brother, sister, nephew or niece are in existence

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.

5. Where the intestate has left neither any lineal descendant, nor a father or a 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.

6. Where the intestate has left neither a lineal descendant, nor a parent, brother or a sister

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.

Conclusion

In order to avoid the complications and consequences of intestate succession, the people in India should adopt 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 NRIs and more information on this, click here

Copyright 2024 – Helpline Law - HLL001