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Understanding Testamentary Succession and Wills: A Comprehensive Guide

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Succession is the legal process by which the rights and obligations of a deceased person are transferred to their heirs.

When we say that a person died intestate, it means that the individual passed away without having executed a will. In such cases, the distribution of their properties and assets will be governed by the personal law of succession and inheritance. The absence of a valid will leaves the determination of the heirs and the allocation of the deceased person’s estate to the legal framework established by the applicable succession laws.

On the other hand, testamentary succession, specifically, pertains to the succession of a person’s property after their death in accordance with the provisions outlined in a legally executed will. This type of succession occurs when the deceased individual has made explicit provisions for the distribution of their estate through a valid will, expressing their wishes and instructions for the disposal of their assets.

The Indian Succession Act of 1925 (in short, “ISA”) serves as the guiding legislation for matters related to wills and testamentary succession in India, encompassing provisions that regulate the distribution of assets after a person’s demise. Part VI (Sections 57 to 191) of the ISA consists of 23 chapters, providing a comprehensive framework for the rules and procedures governing testamentary succession. These chapters delve into various aspects of testamentary succession, including the execution and revocation of wills, the appointment and powers of executors, the construction and effect of testamentary dispositions, and other related matters. Together, these chapters establish the legal framework for testamentary succession in India, guiding the administration and distribution of assets in accordance with the wishes expressed in a valid will.

This article aims to delve deeper into the realm of succession, with a particular focus on wills and their significance. By exploring the intricacies of testamentary succession and the Indian Succession Act, we aim to shed light on the legal principles and processes that govern the distribution of assets according to the wishes expressed in a valid will.

Understanding the term “Will” and “Codicil”

A “will”, often referred to as a “will and testament”, is a legal instrument created in anticipation of death. It encompasses two distinct aspects: the disposition of a person’s “real property”, which includes land and other immovable assets, and the disposal of their “personal property”, which comprises movable or intangible assets. The individual who executes the will is known as the “testator”.

The term “will” finds its roots in the Latin word “voluntas”, which was used in Roman Law to express a testator’s intention. According to Section 2(h) of the ISA, a “will” is defined as the legal declaration of the testator’s intentions regarding the disposal of their property after their demise.

A codicil is a legal document that serves as an amendment or addition to an existing will. It allows the testator (the person who made the will) to make changes, modifications, or revocations to certain provisions of the original will without requiring a complete rewrite of the entire document. Under the General Clauses Act, a “will” includes a codicil and any voluntary posthumous disposition of property made in writing.

Essential Characteristics of a Will

A will, to be considered valid and legally binding, must possess certain essential characteristics.

• Firstly, there must be a legal declaration made by the testator. This means that the document purported to be a will should adhere to the prescribed requirements for execution and attestation as stipulated in Section 63 of the ISA. Moreover, the testator must be legally competent to make a will, which implies that they must be of sound mind and not a minor.
• Secondly, the declaration in the will must pertain to the property of the testator. The will should explicitly mention the disposal of the testator’s property, rather than solely appointing a manager or successor without any reference to the property itself. While the term “property” lacks a specific definition in any legislation, its general meaning encompasses any asset in which the testator holds legal ownership or title.
• Lastly, the declaration in the will must indicate its operation to take effect after the death of the testator. A will cannot be considered valid if its intention is to immediately carry into effect the testator’s wishes. The core essence of a will lies in its revocability during the testator’s lifetime, allowing them the freedom to modify or revoke the provisions as they deem fit.

Types of Wills

The Indian Succession Act (ISA) recognizes two distinct categories of wills: Unprivileged Wills and Privileged Wills.

• Section 65 of the ISA defines “Privileged Wills” as wills made by certain individuals under specific circumstances. According to this provision, any soldier employed in an expedition or engaged in active warfare, any airmen similarly employed or engaged, or any mariner at sea, who has attained the age of eighteen, may dispose of their property through a will made in accordance with the requirements outlined in Section 86 of the ISA. The mode of making and the rules for executing Privileged Wills are specified in Section 66 of the ISA.
• It is important to note that all wills that do not fall within the definition of Privileged Wills are considered “Unprivileged Wills.” These are the typical wills made by individuals who are not engaged in military or maritime activities as described in the ISA.

Legal competency to make a will

The competency to make a will extends to every person of sound mind who is not a minor, as stated in Section 59 of the Indian Succession Act (ISA). This section provides four explanations -

• A married woman may dispose by Will any property, which she could alienate by her own act during her life;
• A person who is deaf/dumb/blind can make a Will, if he/she is able to understand what he/she is doing; and
• An insane person can make a Will during the period when he is of sound mind; and
• Any person who is not capable of knowing what he/ she is doing by reason of illness/intoxication/ any other reason, cannot make a Will.

It should be noted that Section 61 of the ISA declares any will or part of a will void if it has been influenced by fraud, coercion, or anything that compromises the testator’s free agency.

Legal effect of a will

The legal effect of a will differs during the lifetime of the testator and after their death. While the testator is alive, the will remains “ambulatory,” meaning it can be altered or revised. As such, a will is revocable until the testator’s death. However, upon the testator’s death, the will is consummated, and its provisions come into effect.

A will is a posthumous disposition of the testator’s estate, directing the distribution of assets. It should be noted that a will is not a transfer between living individuals but rather takes effect after the testator’s demise. The key characteristics of a will are its intent to be effective after the testator’s death and its revocable nature during the testator’s lifetime. Even if the testator alienates part of the property covered by the will while alive, it does not constitute revocation or impact the properties available for inheritance upon the testator’s death.

Execution of a will

Section 63 of the Indian Succession Act (ISA) outlines the specific manner of executing a will. According to this section:

• The testator must sign the will or affix their mark to it. Alternatively, another person can sign it in the presence and by the direction of the testator.
• The signature or mark should be placed in a way that indicates the intention to give effect to the document as a will.
• The will must be attested by two or more witnesses who have witnessed the testator’s signature or mark.
• The witnesses must receive a personal acknowledgment from the testator regarding the signature or mark.
• Each witness should sign the will in the presence of the testator.
• There is no prescribed form of attestation.

These provisions also apply to a codicil, or any other document modifying a will.

It is important to note that under the General Clauses Act, 1897, the term “sign” includes the act of affixing a mark for individuals who cannot write their name. However, while the testator can execute the will by affixing a mark, the attesting witnesses must sign the document and are not permitted to affix their mark.

Revocation of a will

The revocation of a will or codicil is addressed in Sections 62 and 70 of the Indian Succession Act (ISA).

A will, being ambulatory during the lifetime of the testator, does not come into effect upon execution but only upon the testator’s death. It is important to understand that a will is not a transfer instrument but a devolution instrument. Therefore, it is always revocable during the testator’s lifetime.

Section 70 of the ISA specifies the circumstances under which a will or codicil is revoked. These circumstances include:

1. Marriage (Note: This provision does not apply to Hindus; a will made by a Hindu testator is not revoked by subsequent marriage).
2. Execution of another will, codicil, or a writing declaring the intention to revoke, following the proper procedure for execution.
3. Burning or destruction of the will by the testator or someone in their presence and under their direction, with the intention of revoking it.

It is worth noting that the revocation of a will due to marriage does not apply to Hindus, meaning that a will executed by a Hindu testator remains valid even after their marriage.

Registration of a will

Registration not mandatory: Registration of a Will is not mandatory according to the Indian Registration Act. Section 17 lists documents that require compulsory registration, but a Will is not included. However, Section 18 states that registration of a Will is optional. An unregistered Will is equally valid if it complies with the provisions specified in the Indian Succession Act (ISA). Registration does not determine the genuineness of a Will and does not eliminate the need for appropriate evidence in case of a challenge.

Deposit of a Will with the Registrar: The Registration Act has provisions for depositing an unregistered will in case the testator does not intend to register the Will. Section 42 allows the testator or their authorized agent to deposit a sealed envelope/cover (super scribed with the name of the testator and that of his agent (ifany) and with a statement of the nature of the document) containing the will with the Registrar. The Registrar records the details and keeps it in a fireproof box. The testator can later withdraw the deposited Will, and upon the testator’s death, an application can be made to obtain a copy of the Will.

Change of Will after registration: Under Section 62 of the ISA, a testator can alter or revoke a Will at any time when they are competent to dispose of their property. The ISA also defines a “codicil” as an instrument that explains, alters, or adds to the dispositions of a Will. Therefore, even after registration, a testator has the right to amend or revoke the Will, either partially or completely.

Registration of a subsequent Codicil or Will if the first Will is registered: Registration of subsequent Codicils or Wills is not obligatory, as per Section 18 of the Registration Act. However, practical considerations should be taken into account. If the first Will is registered and subsequent ones are not, it may create confusion and potential claims based on the registered Will. To avoid such complications, it is advisable to register any subsequent Codicil or Will, especially if the first Will is registered.

Stamp duty on wills: According to the Indian Stamp Act, there is a Schedule that specifies the instruments subject to stamp duty and the corresponding amount payable. Notably, Wills are not listed as instruments attracting stamp duty central stamp act. However, it is advisable to refer the specific state legislation since states are empowered under the Constitution to decide the rates of stamp duties for wills.

Properties that can be disposed through a will

The nature of properties that can be disposed of under a Will encompasses all assets owned by the testator. There are no specific provisions in the ISA that restrict or permit the disposal of any particular type of property. In general, a person can include all forms of property in their Will, whether it is immovable property such as land, houses, or apartments, or movable assets like household equipment, vehicles, cash, ornaments, and securities such as shares, bonds, or units in mutual funds.

However, it is important to note that the interest of a Hindu in a Mitakshra Coparcenary property is not considered capable of being disposed of, regardless of the ISA. In simple terms, the ancestral property of a Hindu cannot be bequeathed through a will.

Furthermore, a Will can also cover future properties acquired by the testator after executing the Will.

Regarding the specific aspects of property disposition, the following points should be considered:

• Immovable Property: The term “immovable property” typically refers to land, houses, flats, apartments, and similar assets. However, it is important to note that the Courts consider the “interest in immovable property” as immovable property. For instance, if the Testator holds a leasehold property, they can bequeath their interest in the unexpired period of the lease, subject to the terms of the lease and applicable laws.
• Jointly Owned Property: In cases where the Testator jointly owns property where the shares of each joint owner are not determined, the Testator can only bequeath their undetermined share of the property. The legatee(s) named in the Will then become co-owners of the property along with the other joint owners after the Testator’s demise.
• Flat in Housing Cooperative Society or Apartment Owners Association: Housing cooperative societies or apartment owners associations often require their members to nominate another person for the transfer of their interest after their death. However, the Supreme Court has clarified that a mere nomination does not grant ownership rights to the nominee.The nominee holds the interest of the deceased member as a trustee for the heirs. To ensure the intended transfer of a flat to a nominee or any other person, it is advisable to include a specific bequest in the Will. [Indrani Wahi v. Registrar of Coop. Societies, (2016) 6 SCC 440]
• Investments such as Shares and Bonds: The Testator can bequeath shares, bonds, and securities held in physical or demat form if they are registered in their name. If the investments are held jointly with another person, the Testator can bequeath their interest in those assets. In the case of jointly held bank accounts or investments with an “either/or” survivor mandate, it is recommended to make a specific bequest regarding jointly held bank accounts and investments.
• Deposits in Bank Accounts: Regarding the settlement of claims in respect of deceased depositors, the procedure is outlined in the instructions issued by the Reserve Bank of India (RBI). According to RBI instructions, the survivor or nominee must be informed that the payment received from the bank is as a trustee of the legal heirs of the deceased depositor. This means that the payment does not affect any rights or claims that other individuals may have against the survivor or nominee who receives the payment.

Probate and Letter of Administration

Probate is a legal process that involves obtaining a certified copy of a Will from a Court of competent jurisdiction. It serves as an official confirmation and authorization of the Will, granting administration of the Testator’s estate. The Court that has the power to grant Probate varies depending on the jurisdiction. It should be noted that applications for Probate and Letters of Administration are subject to court fees.

Jurisdiction: Section 264 of the Indian Succession Act (ISA) confers jurisdiction on District Courts to grant and revoke Letters of Administration. However, this varies from state to state and some High courts also have original jurisdiction to handle testamentary matters.

Section 270 of the ISA allows the District Judge to grant Probate or Letters of Administration based on a duly verified application, provided that the Testator or intestate had a fixed place of abode or any movable or immovable property within the jurisdiction of the Judge at the time of their demise.

Process of granting probate: The Court with Testamentary jurisdiction plays a crucial role in the Probate process. It carefully examines the Petition for Probate, verifies the payment of court fees, and ensures the submission of the original Will. If consent affidavits from the legal heirs are not provided, the Court issues notices to notify them of the proceedings. Thereafter, the Court conducts further scrutiny and grants the probate.

Grant of Probate: As per Section 222 of the ISA, Probate can only be granted to an executor appointed by the Will, either expressly or by implication. It cannot be granted to a minor or a person of unsound mind. If the appointed executor renounces or fails to accept the executorship within the specified time, the Court may grant Letters of Administration to the person entitled to it.

Letters of Administration: Letters of Administration refers to the appointment of a person by a competent authority to administer the estate of a deceased person when there is no executor named in the Will. In cases of intestacy or when a person has not appointed an executor in their Will, Letters of Administration may be issued by the court. Section 218 of the ISA specifies that when a Hindu person dies intestate, the administration of their estate can be granted to any person who would be entitled to inherit the deceased person’s estate according to the applicable rules of distribution. If multiple individuals apply for administration, the court has the discretion to grant it to one or more of them.

Character of executor or administrator: It’s important to understand that according to Section 211 of the ISA, the property of the deceased becomes vested in the executor or the administrator. The executor derives their title from the Will and acts as the representative of the deceased. It is not necessary for the executor to obtain Probate to acquire legal ownership of the property. However, in the event of a dispute concerning the Testator’s property, the executor can represent the estate even before obtaining Probate. No decree can be passed by the court until Probate is obtained.

Requirement of a probate: While there is no statutory obligation to obtain Probate or Letters of Administration, it is advisable to do so, especially when immovable property is involved. The office of the Sub Registrar may demand Probate or Letters of Administration when transferring property, and banks often require the production of a Probated Will.

Effect of Probate: The grant of Probate has several effects. Firstly, it establishes the Will from the time of the Testator’s death and validates all actions taken by the executor during that period. Additionally, Probate serves as conclusive evidence of the Testator’s testamentary capacity, the proper execution of the Will, and its validity. Furthermore, the grant of Probate transfers ownership of all the Testator’s property to the person named as the beneficiary in the Probate.

Effect of Letters of Administration:The effect of granting Letters of Administration is that it empowers the Administrator with the same rights and authority as the intestate had if they were alive. Essentially, the administration is treated as if it had been granted at the moment of the intestate’s death. It is important to note that the ISA contains numerous provisions outlining the duties, powers, and potential situations that may arise during the administration process, which are beyond the scope of this discussion.

Important points to consider while preparing will

1. Clear and Legible Text of Will: Whenever possible, it is advisable to type and print the Will so that the text is clear and unambiguous. If the Will is handwritten, ensure that it is written in clear and legible handwriting without any overwriting or cancellations.
2. Mention the Execution Date: The Will should explicitly state the date on which it is executed.
3. Language Familiar to Testator: The Will should be written in a language that the Testator fully understands and is familiar with.
4. Signature on each page: The Testator should put their full signature on each page of the Will to signify their approval and acknowledgment.
5. Independent Witnesses: While there is no legal prohibition, it is recommended to avoid having any of the legatees (beneficiaries) serve as witnesses to the Will.
6. Witnesses of youner age: It is advisable to choose trusted witnesses who are in a younger age group as they might be required to depose in court of law in case the will is challenged.
7. Clarity in Asset Distribution: Clearly state the intended distribution of assets in the Will to avoid any ambiguity or confusion.
8. Clear Description of Immovable Assets: Provide a comprehensive and precise description of immovable properties/assets, often in a separate schedule attached to the Will.
9. Particulars of Bank and Demat Accounts: Including a list with accurate details of bank accounts and demat accounts can be beneficial for the Executor while filing a petition for Probate.
10. Avoid Extraneous Remarks: Ensure that the Will does not contain any extraneous remarks or comments that could potentially lead to controversies in the future.
11. Revocation of Previous Wills: Clearly state whether the Will is the first Will or if it revokes any previous Wills, testamentary dispositions, or amendments. A paragraph explicitly revoking previous Wills can be included.
12. Medical Certificate of Testator’s Mental Capacity: Annex a certificate from a qualified registered medical practitioner confirming that the Testator was of sound mind, memory, and understanding, as well as in good physical and mental health at the time of making the Will.
13. Exclusion of Heirs: If any heirs are to be excluded from receiving a legacy for specific reasons, clearly state this exclusion in the Will and preferably provide a brief explanation for the decision.
14. Reasons for Non-Heir Legacies: If a legacy is granted to someone who is not an heir, briefly record the reasons for granting such a legacy.

Concluding Remarks

Preparing a Will is a crucial step in ensuring the smooth distribution of assets and the fulfillment of the Testator’s wishes after their demise. It is essential to maintain clarity and precision in the language, accurately describe assets, and carefully consider the selection of witnesses and beneficiaries. Seeking legal advice during the Will preparation process is highly recommended to ensure compliance with relevant laws and regulations. Remember, a well-drafted and properly executed Will can provide peace of mind, protect the interests of loved ones, and simplify the administration of the estate.