Wills in India: Legal Framework, Types and Procedural Aspects
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AUTHOR: Leharika Maroti , Amity University, Dubai
Abstract
The legal framework governing wills in India has been significantly driven by statutory provisions, particularly the Indian Succession Act, 1925. This statute outlines essential procedural rules related to wills and succession. Over time, judicial interpretations have played a crucial role in enhancing these principles and rules. Key tools that are central to wills like probate, codicils, and letters, further personal laws that govern successions. Recent jurisprudence has further expanded interpretations of wills and evolved into understanding personal ethics within the Indian constitution.
Introduction
Death is an inevitable part of life, yet individuals are often remembered by the legacies they've left behind. In most cases, the material legacies raise disputes over inheritance. In these cases, a will serves an important role in declaring the intention regarding distribution of assets post death. This makes it easy and clear by reducing confusion and conflicts among legal heirs. A will is a unilateral declaration that outlines how assets shall be divided after a person's death. According to Sec 2(h) in The Indian Succession Act, 1925, a will has been defined as a "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
A will is more than a legal document; it is a declaration that speaks beyond death. It plays an important role in ensuring an individual's wishes are honored. The jurisprudence governing wills varies but has some core principles.
The history of wills in India is a combination of customary principles, religious doctrines, and colonial influences. In ancient Hindu societies, proper succession laws were not present and most of the property was typically divided among male heirs present; this was prominently followed in the Mitakshara school of Hinduism. However, there was no concept of a will recognized. Later, when Islamic law entered the subcontinent, there was a formal practice of testamentary practice from the concept of wasiyat which was a declaration of a person's wishes regarding the disposal of assets after their death. The major transformation came during the British colonial rule with the formal enactment of the Indian Succession Act, 1865 that was later consolidated and adopted as The Indian Succession Act, 1925. This statute acts as a standard legislation for all; however, Hindus and Muslims hold distinct practices regarding wills.
Wills in India
The term Will is derived from the Latin word "Voluntas" in Roman law, which is a testator's intention. Originally the word will have been derived from an Old English term "Willian" which also means to desire or want. In legal context, a will is a term used to express the desire about disposition of property post an individual's death. The term was first used in English law to denote a testamentary instrument. The term testamentary refers to discharging property after death according to the instruction given by them; the intentions of a testator are expressed in a will.
The main governing statute of wills in India is the Indian Succession Act, 1925. Under which Sec 2(h) "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. A will unlike other legal documents only comes into effect post death of the testator. To be legally enforceable, the will must be drafted by a legally competent person with at least two witnesses observing the testator. A will can be edited and changed as long as the testator is alive and competent.
The procedure of making a will in India involves an individual who is eligible of making a will, who is anyone of sound mind and not a minor, can draft a will. A will can be typed or written and must be clear and without any ambiguities. The will must include clear details of the testator's name, age, and permanent address. There should be a detailed list of all assets and liabilities of the testator, name and clear details of the legal heirs and beneficiaries, the distribution of assets among the heirs, and appointment of an executor. The role of the executor is vital in managing the will of the deceased person and executing the assets as per the instructions of the executor. They also hold the responsibility of settling all debts and mortgages of the deceased. In some cases, they must apply for a probate.
Probate is a legal process where the court certifies the validity of the will and grants an executor to administer the will. In essence, probate is a court order that confirms the authenticity of the will. Later if the testator wants to make minor changes to the will, then they issue a codicil. A codicil is a legal document that is used to make amends or add to the will, without revoking the whole legal document. A codicil is executed in the same way a will is attested, that is signing, drafting, and witnesses. A codicil is considered a part of the original will and is read along with the official will.
In cases where there is no intestate will or no executor, then the applicable legal heirs can apply for a Letter of Administration. This is a legal certificate granted by a competent court, when a petition is filled by the legal heirs in a court under Sec 278 of the Indian Succession Act, 1925. After verification is over then the court will examine the will, if satisfied then a Letter of Administration will be issued. This certificate allows an executor to manage, distribute, and collect the deceased assets in accordance with the will. This ensures lawful administration of the will. Lastly, the will must be kept secure and safe in the custody of a bank, a trusted person, or with a lawyer.
Types of Wills
There are various wills that are accepted under the Indian Succession Act, 1925. Some of the major types are:
Privileged will: This type of will is only applicable to soldiers and army officers who actively engage in military exercise. The main purpose behind this type of will is the uncertainty of death in their field of work. This type of will can be made orally without a typed copy or the requirement of being signed by the testator.
Unprivileged Will: This is a more general concept of a will which requires proper drafting and the will needs to meet all the essentials as mentioned under The Indian Succession Act, 1925.
Conditional or Contingent Will: This is a type of will that only comes into effect if the condition stated by the testator in the will is satisfied. If not, then this will is not legally enforceable.
Joint Will: This involves a single will drafted by two or more individuals. This type of will is only valid after both the testators die and can be revoked by either of them while they are alive.
Mutual Will: This will is a will drafted mutually by two people who benefit each other such as a married couple based on mutually agreed terms and conditions.
Legal & Judicial Relevance
The legal framework governing wills in India is governed under The Indian Succession Act, 1925. This law applies to all Hindus, Christians, Parsis and Jews. However, this is not applicable to Muslims who hold distinct testamentary laws. A will is known as a wasiyat in Muslim law under which a testator declares distribution of assets post death. A will is only valid that one-third of the assets after debts and funeral are given to the legal heirs, after which the remaining one-third is distributed according to Islamic law of Fariad. Under Islamic law a will can be both orally or in writing. Indian Succession Act, 1925 does not apply to Muslims unless specifically opted by the individual.
Judicial precedents have played an important role in interpreting and evolving the concept of wills in India. Though Indian Succession Act, 1925 governs basic laws of wills, precedents clarify the application of these statutes.
The earliest case in this context is Tagore v. Tagore (1872) under which the Privy Council had ruled that a testator cannot establish a new form of estates for own personal preferences. This precedent further clarified that a will must not violate Hindu law regarding wills.
Further in the case of Valliammai Achi v. Nagappa Chettiar (1967), the Supreme Court of India held that if a person attempts to dispose of something in a will, of an asset they have no control over, the legal rightful owner can choose to confirm or dissent the asset. It also contributed to the development of Hindu succession law and its jurisprudence in regards with rules or unborn persons' role in a will.
In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma (1959), the Supreme Court held a case regarding the validity of a will. The key legal principles that were held under this case were that the burden of proof in proving a will is on the person who is seeking the probate of the will to prove the execution and attestation of the will and in case of suspicious circumstances the propounder must clear all the doubts of the court. Further according to Sec 63 of The Indian Succession Act, 1925 the will must be signed by the testator, with two witnesses and the testator must be of legal competence.
In the case of Gurdev Kaur v. Kaki (2006), the Supreme Court held that we must establish the intention of the testator by carefully analyzing the text of the will. The intention of the testator can be understood from the language of the will.
These judicial precedents have played an important role in interpreting laws governing wills and the evolution of The Indian Succession Act, 1925. In India, the revocation of wills is governed by Indian Succession Act, 1925 specifically under Sec 70-73. A will can be revoked by a testator at any time during their lifetime. A testator can revoke their will by drafting a new will or through codicil. Further according to Sec 70 the making of a new will automatically revokes the earlier one unless specifically stated. Further under Sec 69 a will is revoked if a testator marries, however in the case of Anil Behari Ghosh v. Latika Bala Dassi the court held that this does not apply to Hindus. A will cannot be revoked after the death of the testator and a revocation is only valid if it's done voluntarily.
Religious Variations
India is a pluralistic society and under testamentary law it provides provision for various religious and matter concerning their succession. Hindu testamentary law is governed by the Indian Succession Act, 1925 and a testator can dispose of their property under the Hindu Succession Act, 1956. Muslim testamentary law in India is not governed by the Indian Succession Act, 1925 but by Islamic law that recognizes the right to a wasiyat. Christians and Parsis in India are also governed by the Indian Succession Act, 1925 and they hold no restrictions following all the legal essentials of a will.
In cases of interfaith wills, the Indian judiciary has upheld and recognized its role in execution of wills. Further in the case of Mary Roy v. State of Kerala the plaintiff who was a Syrian Christian woman challenged the relevance of Travancore Christian Succession Act, 1916 where the Supreme Court had held that Indian Succession Act, 1925 applied to all Christians across and reaffirmed the secular succession laws override discriminatory religious customs. This adaptability allows just wills laws in India with proper functioning.
Conclusion
Wills are unique legal documents which play an extremely important role in ensuring that the wishes of a deceased are honored, and the legal heirs receive their dues. In a country such as India which is extremely diverse, the laws regarding wills ensure all the different individuals' wishes are fulfilled and tailored to their beliefs. The Indian Succession Act, 1925 further reflects both religious traditions and colonial evolution of wills. Further judicial precedents allow room for interpretation and understanding of testaments. Lastly, wills in India are not only a legal document rather a tool to preserve the individual wishes after their death.
