Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance of a person, are transmitted through his death to another or others either by his will or by operation of law. In last few articles we saw what happens when a person dies without making a will, i.e., he dies intestate. The second mode of succession is through a will. This is known as testamentary succession. A will is a document which contains the last wishes of a person as regards the manner and mode of disposition of his property. Many people defer preparing their will for a variety of reasons and ultimately it may be too late. In India, especially, the practice of preparing a will is not very prevalent unlike the western world. In this article, we shall discuss Testamentary Succession and Wills. Wills are governed by the provisions of the Indian Succession Act, 1925. Some of the provisions of the Act do not apply to wills made by Hindus, Sikhs, Jains and Buddhists. However, the Act does not apply to wills made by Muslims as they are governed by their respective Shariat Laws.
Testamentary succession:
Testamentary succession occurs when a person dies and leaves a will. Their property will be distributed as they bequest in the will however legal rights will still have to be satisfied.
In intestate succession the property of deceased is distributed by the laws of intestacy which are governed as following laws:
| Faith | The Applicable Act |
| Hindus, Jains, Sikhs, Buddhists, | The Indian Succession Act, 1925 |
| Muslims | The Personal Law Application Act, 1937 |
| Christian, Jews, Parsis | The Indian Succession Act, 1925 |
| Inter-faith | The Special Marriage Act, 1954 |
Definition of Will:
According to section 2(h) of the Indian Succession act, 1925 A will is defined as the legal declaration of the intention of a testator with respect to his property, which (intention) he desires to be carried into effect after his death. The General Clauses Act, 1897, defines the term will to include “a codicil and every writing making a voluntary posthumous disposition of property”. The Indian Penal Code defines a will to denote any testamentary document.
Characteristics of Will:
A Will is a legal document:
The document purporting to be a Will must be legal, i.e., in conformity with the provisions as regards execution and attestation, as laid down in section 63 of the Indian Succession Act, 1925 and must be made by a person competent to make it. A minor is legally incompetent to make a Will, and a Will by a minor is not a legal declaration. It may also be noted that the mere use of the word “Will” cannot make it a Will, if it does not amount to a testamentary declaration disposing of the property. A Will is executed in accordance with formalities prescribed by law.
It is related to Property of testator:
The declaration should relate to the property of the testator which he wants to dispose of after his death. If the declaration contains no reference to the disposal of the property, but merely appoints a manager to manage the property, or gives merely an authority to his widow to adopt it is not a will.
Intentions in a Will manifest after the death of testator:
It must be a declaration of an intention to dispose of his property after his death. The intention manifests only after the testator’s death, i.e., posthumous disposition of his property. Till the testator is alive, the will has no validity. He can dispose of all his properties in a manner contrary to that stated in the will and such action would be totally valid. For example: A makes a will bequeathing all his properties to his brother. However, during his lifetime itself, he transfers all his properties to his son with the effect that at the time of his death he is left with no assets. Such action of the testator cannot be challenged by his brother on the ground that he was bound to follow the will since the will would take effect only after the death of the testator. In this case as the property bequeathed would not be in existence, the bequest would fail.
A Will can be revoked:
A will always operates from the date of the testator’s death, and not from the date of its execution. During the testator’s life, his will is always ambulatory i e, of an unsettled and fluctuating character, inasmuch as it can be revoked by the testator at any time. Thus, the will can be revoked at any time by the testator in his lifetime. The very nature of a will is such that it the person making it can change it as often as he likes. According to s 62 of the Act, a will is liable to be revoked or altered by its maker at any time when he is competent to dispose of his property by making a will.
A Will is a unilateral act:
No acceptance by the transferees is needed during the lifetime of the testator.
A Will is strictly personal act:
The disposition of property is solely dependent upon the testator. Thus, in the making of a will, preparation thereof cannot be wholly or partially entrusted to a third person or made through an agent or lawyer. It refers to the disposition of property. This is so because the essence of making a will is the disposition of property, hence, it cannot be delegated to another. Making of a will cannot be delegated. It is not only the delegation which is void but the disposition itself is void.
To make a Will is a statutory right:
The making of a will is only a statutory not a natural right. Hence, a will should be subordinated to both the law and public policy.
Test for a Will:
The following are the two tests for determining whether a document is a will or not :
- That it was the intention of the writer to convey the benefits by the instrument which would be conveyed by it, if considered as a will, Le., the writer had the necessary intention or animus testandi. A will, though formally executed as such, will not be valid, if there is no animus testandi, e.g., if it was written in jest.
- That death was the event that was to give effect to it. If the writing confers, or is intented to confer, benefits inter vivos (i.e., during the life-time of the person), without any reference to the death of the party conferring it, such a document cannot be called a will.
Need of Making a Will (Testamentary Succession):
Some of the reasons why a person should make a will (Testamentary Succession) are as follows:
- He has complete discretion on how he wants to deal with his property. He can give assets to those persons. whom he wants to and avoid others. If a person does not make a Will then the property of the deceased would pass by the relevant succession law and in this case there would be no control over who gets what.
- Several succession disputes regarding the business arise after the head of the family dies intestate. If a valid will is in place, it would reduce all such unpleasant disputes.
- In case a person wants to reward a friend, an old servant, an employee, etc., he can do so. If he does not make a will, then there is no way in which this would be possible after his death.
- Making a will is something which most people keep deferring on some pretext or the other. It is advisable to make a will at an early age because of the uncertainty of life. There is no limit on the number of times a will can be revised.
Advantages of Making a Will (Testamentary Succession):
- A standard distribution under the law of intestacy is avoided. Property is devolved on the basis of distribution given by deceased in his Will by the testator. The testator decides on who will get what and how much of it.
- It informs the individuals who will be receiving assets of testator. Thus, family disputes for property can be avoided. Thus it results in Less stress and disputes for the beneficiaries
- All assets of testator are revealed
- Testator can choose and appoint an executor(s) he trusts
- The process of devolution of property becomes simpler.
- Through will guardians of minors can be appointed.
- It reduces legal hassles.
Who can make a will?
All persons of sound mind, not being minor and who are not expressly prohibited by law may make a will. It shall be sufficient if the testator was able at the time of making the will to know the:
- Nature of the estate to be disposed of;
- Proper objects of his bounty; and
- Character of the testamentary act.
Terminology of Testamentary Succession:
Testator:
A person who makes the will. He is the person whose property is to be disposed of after his death in accordance with the directions specified under the will.
Beneficiary:
Beneficiary is the person to whom the property of the testator would be bequeathed under the will.
Legatee:
Legatee is a person to whom the personal property (jewellery, vehicles, cash, etc.) of the testator would be bequeathed under the will.
Devisee:
Devisee is a person to whom the real property (a home, a farm, etc.) of the testator would be bequeathed under the will.
Estate:
The property of the testator remaining after his death. It consists of the sum total of such assets as are existing on the date of the testator’s death. The estate may also increase or decrease after the testator’s death due to the actions carried out by the executors.
Executor/Executrix:
The persons who would administer the estate of the testator after his death in accordance with the provisions of the will. The Executor is normally named in the Will itself. If he fails to accept the responsibility, then the Court may appoint some person as the Executor. An individual, limited company, partnership firm, etc., may be appointed as an Executor. In many cases, a bank is appointed as an Executor of a will. For all legal and practical purposes, the Executor acts as the legal representative of the estate of the deceased. On the death of the testator, property cannot remain in a vacuum and hence, the property immediately vests in the Executor till the time the directions contained in the will are carried out and the property is distributed to the beneficiaries.
Bequest:
The property / benefits which flow under the will from the testator’s estate to the beneficiary is called a bequest.
Bequeath:
The act of making a bequest is called bequeath.
Witnesses:
The persons who witness the signing of the will by the testator are called witnesses.
Life-interest Beneficiary:
A life-interest beneficiary is a very common term which is used in wills. It denotes a beneficiary or a legatee who is entitled to enjoy a property or income from a property bequeathed to him only during his own lifetime. Once he dies, he neither has power of disposal of the property by will nor would it devolve by succession. He can enjoy and use the property only during his lifetime. Such a beneficiary is often created for residences. For instance, a husband may provide in his will that after him his residence would go to his wife for life and after that to his son. In such a case, the wife is a life-interest beneficiary with no power of disposal over the flat. Even if she wants to, she cannot will away the flat. The son would automatically become an absolute owner of the flat with full rights of disposal after his mother’s death.
Codicil:
A Codicil is an instrument which explains, alters or adds to the disposition of a will and it is deemed to form part of the will. In short, it is a supplement to the will.
According to the Act, a Codicil also must be attested and executed like a will. A Codicil is normally used when the alterations to the will are few. If there are a substantial number of alterations to the will, then it would be advisable to execute a fresh will itself. Codicils are attached to the will.
Form of a will:
There is no prescribed form of a will. To be effective, it need only be properly signed and attested as required by the Indian Succession Act. If the necessary animus testandi (intention to dispose of the property after the death of testator) is present, even agreements, letters, bills of exchange and powers of attorney may operate and take effect as wills, provided that under such animus testandi, the dispositions are not to take effect until after the person’s death.
Language and writing of a will:
Will should be in simple, clear, unambiguous language. No technical words need be used in a will, and a will can be in any language. It should reflect the mind of the testator with sufficient clarity. It can be typed or printed or hand written. If handwritten, then preferably it must be written with an ink.
Stamp duty:
No stamp duty is payable on wilts and codicils. Hence, wills and codicils need not be written on stamped paper.
Conclusion:
A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. It is a legal declaration, unilateral and strictly personal act. It must be a declaration of an intention to dispose of his property after his death. All persons of sound mind, not being minor and who are not expressly prohibited by law may make a will.