Frequently Asked Questions On Will

QUERY #1

Where should I register my will? At the place where I reside or at the place the property is?

ANSWER:

The short answer to your question is YES. You may register the will at the place of your residence or at the place where the property is located.

The legislation that governs the creation and execution of wills in India is the Indian Succession Act of 1925.  A will can be created by any person who is of sound mind and not intoxicated at the time of creation of said will. Even a deaf, dumb, or blind person may create a will provided they are aware of the consequences of their action. Even a generally insane person may create a will at a time when he is not insane and can understand the consequences of his action.

Nowhere in the Indian Succession Act of 1925 can any mention of the jurisdiction of a will can be found as such jurisdiction does not exist. A probate of a will is the certified copy of a will issued by a court after it has verified the will to be genuine. As per Indian Succession Act, the Court at the area of residence of the testator shall have the jurisdiction to grant the certificate or probate of the will. If the testator did not have a fixed place of residence, the Court where any of the properties of the deceased is found shall have the jurisdiction for the same. 

Therefore, a will can be registered preferably at the area of residence of the testator, or if such a permanent area of residence does not exist, at the area where the testator has properties.

I hope this helps. Thank you for your time and patience!

QUERY #2

After my father passed away recently, I became the legal owner of the property purchased by him as per his registered will because my mother had died long back. I have two children and want to make a registered will so that my wife won't have to face any problem as long as they live. I want to bequeath my property to my wife and after her death equally to my two children. If she is not alive at the time of my death I want my property to be divided equally between my two children. 

Are these terms valid? Can I put them on my will?

ANSWER:

The short answer to your question is YES. You may put these terms on your will as they are legally valid.

The Indian Succession Act of 1925 governs the laws regarding the creation and execution of wills. It states in its section 59 that any person may create a will as long as they are of sound mind and not intoxicated at the time of creating the will. Even a deaf, dumb, or blind person may create a will provided they are aware of the consequences of their actions. Even an ordinarily insane person may create a will at a time when he is of sound mind. The only real requirement for creating a will is that the testator must be aware of the consequences of their actions.

A will maybe declared void for the reasons:

1)    If the condition stated in the will is illegal or immoral;

2)    If a will does not express any specific intention;

3)    If a will is made to bequest properties to a person who does not exist or cannot be found as per the description given by the testator;

4)    If the will delays the vesting of the bequeathed property to more than the lifetime of one or more persons who were alive at the time of death of testator, and from this period, to a period more than the age of majority of a person who existed as a minor at this time;

5)    If the will bequests all the property to religious or charitable uses, while a nephew or niece or any such near relative exists, unless the will was created within twelve months before the death of the testator and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons;

6)    If the terms of the will direct towards any accumulation of income from any property for more than eighteen years, etc.

Therefore, the contents of the will does not violate any of the restrictions imposed by the Indian Succession Act of 1925 and therefore is completely valid.

I hope this helps. Thank you for your time and patience!

QUERY #3

My mother has 50 Lakhs in fixed deposits which she has made a will for in my favour. However, now she wants to use this money to purchase a residential property in her name, to which I will also pay a small amount. I also have two siblings.

Will I become the rightful owner of this property after her demise as the money used for its purchase was already willed in my favour, or will she have to make a new will explicitly mentioning this property?

ANSWER:

The short answer to your question is NO. You cannot be the rightful owner of this property unless this property is mentioned in the will.

The laws regarding wills are governed by the Indian Succession Act of 1925. It states that any person may create a will as long as they are in a state to understand the consequences of their actions. A property mentioned in a will can be bequeathed only if it belongs to the testator.

Here, if the money mentioned in the will is used off by the testator, then such money cannot be bequeathed to the beneficiary mentioned in the will as such money does not exist anymore. The fact that you spent your money on the property is irrelevant if the will does not specifically mention that the property be bequeathed to you. In such a case, it may as well be considered that such a will does not exist and that the testator died intestate. You may inherit the property this way as you are a legal heir but if other legal heirs also exist, which is quite probable, there is no guarantee that you may inherit this specific property. Therefore it would be better to create a new will that specifically mentions this property.

I hope this helps. Thank you for your time and patience!

QUERY #4

My father passed away recently and we moved to the High Court for the probate of his will. My father had debarred his two sons from his self acquired flat, but my brother has forcibly acquired it saying he too has a right to this property.

Can he be removed once the will is probated from the Court? 

ANSWER:

The short answer to your question is YES. You may evict him from the house once the will is probated.

The laws and regulations regarding the creation and execution of a will are governed by the Indian Succession Act of 1925. This act states that any person may create a will as long they are aware of the consequences of their actions.

If as per the terms of the will you are bequeathed certain property, then you may enjoy the sole ownership of the property. But if the will does not bequeath you any property, you have no legal right to claim such property even if you are a legal heir to the testator, unless the property in question is ancestral. Therefore the brother cannot claim any share in the property if as per the will he is not bequeathed the property.

If as per the will you are bequeathed the property in question, then you become the absolute owner of that property. As absolute owners of the property, you may file an eviction suit in court to get your brother removed from the property if he refuses to leave on his own.

I hope this helps. Thank you for your time and patience