This article on ‘Concept and Laws governing Will in India‘ was written by Priyanka Kalra, an intern at Legal Upanishad.
In this article, we will discuss the concept and laws governing Will in India. All of us want to sure that our life was meaningful and someone is there to take care of our property after death. A person states through his will how and to whom his property should be dispersed after his death. So, let us talk about the concept of will and how our government has made certain laws regarding the proper succession of property through wills.
Concept of Will in India
A Will is a legal proclamation document through which a person expresses his or her wishes regarding the disposition or transfer of his or her property after death. A “Will” is a legal document of a person’s intention with respect to his property that he intends to take effect after his death, according to Section 2(h) of the Indian Succession Act of 1925. That person appoints an executor who shall manage the will after his death.” This means that the executor has the power to make amendments to the will like managing his debts, property, etc.
An executor is appointed by the testator whereas, the administrator is appointed by the court to manage the affairs of the estate of the deceased. A will can be formed at any point the time and as many amendments can be done as a person wishes to. If a person wishes so, it could also be disposed of at any time during the lifetime
The Capacity of the Testator
Any individual, that is, anyone over the age of 18, is capable of making a will. According to Section 59 of the Indian Succession Act, any person of sound mind (not insane) that is not a minor can make a Will. Wills are usually made by elderly people who are ill and can see death approaching.
Limitations on making of Will:
- Minors i.e., under the age of 18, are not capable of making a will under Hindu law.
- A Hindu married woman may only dispose of property by will that she has the legal capacity to alienate while alive.
- Deaf, blind or dumb people can only make a will if they are aware of their actions.
- The will of the insane person is considered valid only during his lucid intervals.
- A will made by a person who has been intoxicated is also considered invalid.
Laws Governing Will in India
India is a secular country and has a diverse range of people including Hindus, Muslims, Sikhs, Buddhists, Christians, etc. The constitution makers of the country considered the needs of the country in their minds and established separate personal laws for each religion. This ensured that each religion enjoys secularity within the control of the law.
The Hindu Succession Act of 1956 sets rules and regulations on the making of Hindu wills. This Act applies to “any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana, or Arya Samaj”; every individual who is born Hindu, Jain, Buddhist, or Sikh (or by religion); and all those who are not Muslim, Christian, Parsi, or Jew.
Thus, according to Section 18 of the Registration Act, a will is not necessary to be registered, nor is it required to be on stamp paper. Any attempts by a person to assert an oral will must be rigidly illustrated on very satisfactory evidence, as the burden of establishing an oral will is on the person asserting it. The testator can change or revoke a will at any time during his lifetime.
A codicil is a legal document that can be used to accomplish this. (This means that a contract holding a particular will to be the last will or preventing it from being revocable is invalid)
In Islamic law, no written formality is necessary for making a will. Till the time the intention of the testator is properly stated, no written forms or declaration is necessary unlike in Hindu Law. A Will is called ‘Wasiyat’, in Mohammedan law, which means “an instrument by which a person makes disposition of his property to take effect after his death.”
The Muslims make wills to provide maintenance to those family members who did not get the proper share in the inheritance. Therefore, Muslim law permits a man to give away all of his property during his lifetime, but forbids him, except for one-third of his estate, from interfering with how that property passes down in accordance with inheritance laws.
The Will is governed by the rules and regulations of the school of Muslim law to which the testator belonged at the time of the execution. In case, the testator was a Shia Muslim at the time he formed the will, for instance, then only the Shia law of will is made applicable.
The deceased’s religion determines who inherits his estate. The Hindu Succession Act, of 1956, for example, governs succession among Hindus. As a result, for succession purposes, The Indian Succession Act of 1925 governs Christians in broad terms. According to Section 2(d) of the Act, an “Indian Christian” is defined as follows: A native of India who is or claims to be of unmixed Asiatic descent and practices any form of Christianity is referred to as an “Indian Christian.”
A fair share of the estate is given to each child, or in the case of a predeceased child, to the children of that child, with the widow or widower receiving one-third of the estate and the remaining portion is divided among the deceased’s lineal descendants. In the absence of the latter, the widow or widower inherits half of the estate, with the remainder divided among relatives (other relatives of the deceased). In the absence of the father, or if the latter has died, the mother inherits the property equally, followed by the brother, sister, and their children.
The pandemic created us all more aware of the importance of human life. The increasing number of deaths in India created a panic in the citizens and wills were made to ensure better living for the upcoming generation. It may be noted that different religions enjoy personal laws governing a will in India. Their rights and wishes must be taken into account when laws are applied to their community.
- Sahil Shah, “An Overview of Wills under Hindu Law”, Legal Services India, available at: https://www.legalserviceindia.com/articles/will_hindu.htm
- Nikara Liesha Fernandez, “Wills in India and a global outlook on the history of the same”, iPleaders Blog, 22 September 2021, available at: https://blog.ipleaders.in/wills-in-india-and-a-global-outlook-on-the-history-of-the-same/#Laws_governing_wills_in_India
- Himanil Raina, “Law of Wills in India: What every Indian should know”, iPleaders Blog, 14 May 2014, available at: https://blog.ipleaders.in/law-of-wills-in-india-what-every-indian-should-know/
- Shiva, “Concept of Will under Muslim Law”, Legal Services India, available at: https://www.legalserviceindia.com/legal/article-251-concept-of-will-under-muslim-law.html
- “Christian Law of Succession in Indian Law”, Law Teacher, 26 August 2021, available at: https://www.lawteacher.net/free-law-essays/property-trusts/christian-law-of-succession.php