Will - Notes

Coverage of this Article

1. Introduction

-A will is a legal document that states what a person wants to happen to their property after they die.

2. Will As Per Muslim Law

- If a Muslim has married under the Special Marriage Act, 1954, they will they make is governed by the Indian Succession Act, 1925, and not by Muslim Personal Law.

3. Revocation Or Codicil Of Will

- This means that the person can revoke or alter their will according to their wishes.

4. For Registration Of Will

- Registering a will adds an extra layer of validity and makes it easier to prove its authenticity

5. Will In Sealed Cover

- A testator, either by themselves or through an authorized agent, can deposit their will in a sealed cover with a Registrar.

6. Will May Be Registered After The Death Of The Testator

- The person presenting the will needs to provide the death extract of the testator as proof.

7. Probation Of Will

-"Will" means the legal declaration of the intention of a testator concerning his property which he desires to be carried into effect after his death under Sec.2(h) of "the Indian Succession Act, 1925".

WILL AS PER MUSLIM LAW

-Under Islamic law, a Muslim can dispose of his property by gift, by creating a wakf, or by accessing his testamentary powers i.e. by making a Will.

REVOCATION OR CODICIL OF WILL

-Will may be revoked or altered: A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will (Sec.62 of Indian Succession Act, 1925).

CODICIL: "

Codicil" means an instrument made about a will already be executed that may remove, add, or alteration in assets or the beneficiaries and shall be deemed to form part of the will (Sec. 2(b) of Indian Succession Act,1925).

For Registration of a Will

-It's advisable to register it if its contents are to be abided by after the person's death. In other words, the will's validity or genuineness will be suspect and difficult to prove if it's not registered. It does not require stamp duty. 

WILL IN SEALED COVER

-A testator personally or through his authorized agent may deposit, with any Registrar his will in a Sealed Cover.

WILL MAY BE REGISTERED AFTER THE DEATH OF THE TESTATOR

-The Registering Officer to whom the will is presented will inquire about the execution of the will and deliver his judgment on whether the will is genuine or not as he deems fit.

Probation of Will

-Whether a Will is registered or not, a petition has to be filed before the Principal Court of Original Jurisdiction or before the Hon'ble High Court under Section 374 of the Indian Succession Act, and a decree passed by a competent court declaring the legality/correctness and genuineness of the Will of the deceased. It is not mandatory to probate a will as various circumstances make the probate of the will in a certain case unnecessary but rules can vary from state to state.

1. Introduction

A will is a legal document that states what a person wants to happen to their property after they die.
- Under Sec.2(h) of "the Indian Succession Act, 1925".
- Under the Indian Succession Act, 1925, under section 17 (Act), and according to section 18 (e) of the Registration Act, 1908.
There is no restriction on how many times a Will can be made by a testator.
- Hindus' wills are governed by the Hindu Succession Act, 1956, and for non-Muslims, including Christians, the Indian Succession Act, 1925 applies.
Muslims have their own laws for making wills.
- However, ancestral property cannot be included in a will, only self-owned property can be disposed of through a will.

2. Will As Per Muslim Law

- Under Islamic law, a Muslim can distribute their property in three ways:
a) through gifts,
b) creating a wakf (a charitable endowment),
c) Making a will. In Islamic law, a will made by a Muslim is called a Wasiyat.
- If a Muslim has married under the Special Marriage Act, 1954, they will they make is governed by the Indian Succession Act, 1925, and not by Muslim Personal Law.

3. Revocation Or Codicil Of Will

- This means that the person can revoke or alter their will according to their wishes.
- (Sec. 2(b) of Indian Succession Act,1925).
- A codicil is a document that is made to modify or add something to an existing will.

4. For Registration Of Will

- Registering a will adds an extra layer of validity and makes it easier to prove its authenticity
- To register a will, the person making the will (testator) needs to provide proof of their address (such as an Aadhaar card), along with photographs. Additionally, two witnesses with their photographs and address proofs are required.
- Provides more assurance that its contents will be respected and followed according to the testator's wishes.

5. Will In Sealed Cover

- A testator, either by themselves or through an authorized agent, can deposit their will in a sealed cover with a Registrar.
- Sec.42 of Registration Act, 1908).
- If on the death of a testator who has deposited a sealed cover under section 42.
- (Sec.45)or electronically in the registration office records as per executive instructions.

6. Will May Be Registered After The Death Of The Testator

- The person presenting the will needs to provide the death extract of the testator as proof.
- District Registrar or Sub-Registrar for registration. (Sec.40 (1)) of Registration Act, 1908. these facts.
- The person presenting the will also needs to give a statement containing

- The Registering Officer will examine the execution of the will and make a judgment on whether it is genuine or not, based on their own assessment.

7. Probation Of Will

- According to section 2(f)1 of the Indian Succession Act, 1925.
- Section 374 of the Indian Succession Act
- Probate a Will is compulsory in the territories of Delhi, Mumbai and Chennai.
- Under Section 212(2) of the Indian Succession Act, 1925,
- Section 222 of the Indian Succession Act, 1925, Probate shall be granted only to an Executor appointed by the Will.
- An unregistered will can be valid.

"Will" means the legal declaration of the intention of a testator concerning his property which he desires to be carried into effect after his death under Sec.2(h) of "the Indian Succession Act, 1925".

A Will, also called 'testament' is an implement that enables a person with a sound mind not being a minor may dispose of his property by will (Sec.59 of Indian Succession Act, 1925).to dispose of his property to someone whom he wants to give after his death. A Will is intended to dispose of the property.

Registration of will is not mandatory, as under the Indian Succession Act, 1925, under section 17 (Act), and according to section 18 (e) of the Registration Act, 1908. There is no restriction on how many times a Will can be made by a testator. However, only the last Will made before his death is enforceable. A Will has to be executed by the testator, by signing or affixing his thumb impression on it. It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will.

When a person dies intestate i.e., dies after executing a will (testate/testament) the law applies is, 'testamentary succession'. This part of the subject, the law of will deals with 'Testamentary succession of Muslims and Non-Muslims i.e., Hindus, Christians, and others. The will of Hindus is covered underSee. 30 ofthe Hindu Succession Act, 1956 and other than Muslims covered under the Indian Succession Act, 1925. The will of Muslims is covered under Muslim Law.

When a person makes a will, he/ she is declaring how the assets and properties are disbursed and to whom after his/ her death. Of course, the property and assets can't be ancestral, but only self-owned.

WILL AS PER MUSLIM LAW

Under Islamic law, a Muslim can dispose of his property by gift, by creating a wakf, or by accessing his testamentary powers i.e. by making a Will.

In Islamic law, a Will executed by a Muslim is known as 'Wasiyat'. The person who executes the Will is called 'legator' or 'testator' and the person in whose favour the Will is made is known as 'legatee' or 'testatrix'.

There is a strict rule in Islamic law thata Muslim can make a Will in favour of anyone, only to the extent of one-third of his total property. If the Will is made beyond one-third of the property, the consent of the legal heirs is mandatory no matter in whose favour the Will is made.

In a case where a Muslim has married under the Special Marriage Act, 1954, the Will made by such Muslim is regulated by the provisions of the Indian Succession Act, 1925 and not by the Muslim Personal Law.

REVOCATION OR CODICIL OF WILL

Will may be revoked or altered: A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will (Sec.62 of Indian Succession Act, 1925).

CODICIL: "

Codicil" means an instrument made about a will already be executed that may remove, add, or alteration in assets or the beneficiaries and shall be deemed to form part of the will (Sec. 2(b) of Indian Succession Act,1925).

A codicil is an official amendment to an existing will, used to add something, or to remove something, as a will, once signed and witnessed, cannot be physically changed. While there are no laws regarding when a codicil can or should be, used to make changes to a will, it is commonly used when the changes are minor.

For Registration of a Will

It's advisable to register it if its contents are to be abided by after the person's death. In other words, the will's validity or genuineness will be suspect and difficult to prove if it's not registered. It does not require stamp duty. Registrationof the will happens at the office of the sub-registrar. One must submit address(AADHAAR CARD) proof, photographs, and two witnesses and with their photographs and address proofs and should accompany the testator to the registrar's office for registration.

WILL IN SEALED COVER

A testator personally or through his authorized agent may deposit, with any Registrar his will in a Sealed Cover. The Cover should be superscribed with the name of the testator or that of his agent, if any, deposing the Cover and the nature of the document(Sec.42 of Registration Act, 1908).

If the testator who has deposited sealed cover wishes to withdraw it, he may apply, either personally or by a duly authorized agent to the Registrar who holds it in deposit, and such Registrar, if satisfied that the applicant is the testator or his agent, shall deliver the cover accordingly (Sec.44).

If on the death of a testator who has deposited a sealed cover under section 42, the application is made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, he shall, in the applicant's presence, open the cover, and, at the applicant's expense, cause the contents thereof to be copied into the books either manually (Sec.45)or electronically in the registration office records as per executive instructions.

WILL MAY BE REGISTERED AFTER THE DEATH OF THE TESTATOR

(a) Any person claiming as executor or otherwise under a will may present it after the death of the testator to any District Registrar or Sub-Registrar for registration. (Sec.40 (1)) of Registration Act, 1908.

The death extract of the testator shall be presented to the District Registrar or Sub Registrar as the case may be by the beneficiary at the time of presentation of the application or at least before the commencement of the inquiry.

(b) At the time of presentation of the will a petition setting forth the fact of the death of the testator, the title of the presentant to present the will, of places where the testator lived and died and where his properties lay, and also the details about the interested persons to whom special notices should be sent should be obtained from the presentant. A deposition should also be recorded from the presentant embodying the above facts.

(c ) After the presentation of the Will by the beneficiary, the date for an inquiry under section 41 (2) of the Act shall be fixed with due regard to the date of the publication in any newspaper published in the principal language of the District and having wide circulation in the District in which the testator or the donor lived and also in such a daily newspaper having wide circulation in the District in which the property of the deceased is situated.

The Registering Officer to whom the will is presented will inquire about the execution of the will and deliver his judgment on whether the will is genuine or not as he deems fit.

Probation of Will

According to section 2(f)1 of the Indian Succession Act, 1925.

Whether a Will is registered or not, a petition has to be filed before the Principal Court of Original Jurisdiction or before the Hon'ble High Court under Section 374 of the Indian Succession Act, and a decree passed by a competent court declaring the legality/correctness and genuineness of the Will of the deceased. It is not mandatory to probate a will as various circumstances make the probate of the will in a certain case unnecessary but rules can vary from state to state.

Probate a Will is compulsory in the territories of Delhi, Mumbai and Chennai.

Under Section 212(2) of the Indian Succession Act, 1925, Hindus, Muslims, etc. are not bound to apply for letters of administration (Probate). It is optional and not mandatory for these persons to seek probate of the Will.

If the Will which is required to be probated, under the Act, if not probated, has no legal sanctity and binding force.

According to Section 222 of the Indian Succession Act, 1925, Probate shall be granted only to an Executor appointed by the Will. The appointment may be expressed or by necessary implication. In the absence of the Executor being named in the Will, the Legatees of the Beneficiaries under the Will could also seek probate of the Will.

It means that when a Will is probated, it gets officially certified with a seal of the court and provides the authority to the executor to appropriately distribute the assets of the deceased testator and also to pay off bills and creditors from that estate.

A registered Will need not be necessarily probated, as registration means that the testator of the Will and the witnesses have appeared before the sub-registrar of assurances and that their identity has been verified. However, the registered Will can also be probated, if the Genuity of the Will is in question. Nevertheless, Will does not fall within the instruments that need to be mandatorily registered under the Registration Act 1908 and even an unregistered Will is also valid.