Basics of a Will Document and its relevance for NRIs

Concept of Will document

The concept of a family is powerful in India. Post the death of a person, their heir can legally take ownership, rights and obligations of the property left by the deceased through a Will. This article will give a clear understanding of the concept of Will under Indian Succession Laws.

Will is the legal declaration of the testator’s intention on his property which he desires to be carried into effect after his death.

Simply put, a Will is a crucial legal document allowing any living person to clearly state how they want their property and fortune to be split/divided after death. A person can ensure that his or her preferences about their possessions and assets are carried out faithfully and quietly even after passing away by creating a Will.

A person’s property is governed by a sophisticated system of succession rules in India. However, these guidelines only apply to Wills and codicils created by Hindus, Buddhists, Sikhs, Jains, Parsis, and Christians, as Muslim Law controls things pertaining to them.

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The laws that apply to the making of a Will are:

1. The Indian Succession Act, 1925
2. Hindu Personal Laws
3. Muslim Personal Laws
4. The Indian Registration Act, 1908

Persons Competent to Create a Will Document

According to the Section 59 of the Indian Succession Act, an individual of sound mind who has achieved the age of majority is competent to create a Will.

The making of a Will document cannot be done by the following people:

1. Lunatics, insane or mentally disturbed persons.
2. Minors, i.e., below 18 years old. When a guardian is appointed to a minor, the age of maturity of such a child is taken as 21 years.

Preparation of the Will

Any individual over the age of 18 years can produce a Will. A person competent to understand what a Will is, what type of property they are dividing and among whom they are distributing the property can constitute a Will.

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Essentials of a Will

• Legal declaration: A Will is a binding legal document. The documents that appear to be a testament or a Will must be legal; that is, they must be in accordance with the law, and they must be administered by someone who is legally qualified to do so. As required by legislation, it must be signed and attested. Two witnesses must attest the Will.
• Disposition of property: The declaration must deal with the distribution of the testator’s assets (Moveable and Immoveable Properties).
• The death of the Testator: Only after the testator’s death does a Will become legally binding. Prior to the testator’s demise, it grants the legatee (the person who inherits) no rights. During the testator’s lifetime, it has no effect. Before passing away, the testator has the freedom to modify his Will whenever and however he/she sees proper.
• Revocability: The essential of every Will is that it is revocable during the testator’s lifetime.

Forms & formalities for creating or making a Will document

• A form of a Will: No prescribed set format for a Will document is available. But it must be properly signed and verified by the testator, in order to be valid. Each page must have the testator’s initials at the bottom, as well as adjacent to any corrections or modifications.
• The Will language:  A Will can be written and prepared in any language. No technical or legal words need to be used in a Will. However, the terms used should be clear so that the testator’s intention is reflected in his Will.
• Stamp Duty: A Will can be executed without paying stamp duty. It’s not required to make a Will on legal stamp paper.
• Registration: Under Section 18 of the Registration Act, it is not the registration of a Will is not compulsory.

However, the registration is strong legal evidence that the proper parties had appeared before the registering authorities, and the latter had attested the same after ascertaining their identity.

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According to the Indian Succession Act, a Will must be demonstrated to have been properly and legally executed. A Will cannot be altered, destroyed, disfigured, or stolen once it is registered since it is kept in the Registrar’s secure possession. Only the testator himself or, in the event of his passing, an authorised individual who can provide the Death Certificate may receive access to it.

Wills Made in India by NRIs Pertaining to Indian Properties

There are two types of Will: Probated and Unprobated.

A probate is a copy of a Will. It is certified by the tribunal and is to be treated as conclusive evidence of the genuineness of a Will.

Admissibility and Value of the Will Document in the property Transfer matters:

The property can be easily transferred based on a registered Will. In some states, unregistered Wills are also acceptable for the transfer of property.

Process of transferring the property based on Will

The necessary paperwork is delivered to the Sub Registrar’s office in order to transfer ownership. The necessary paperwork is:

• Will– Wills can either be registered or unregistered. A certified copy of the Will is provided in this situation. An authenticated copy of the Will is provided if it is not registered.
• Probate – If it is required or if the Will is not recorded, probate may be obtained. In several States, probate is required.
• Succession certificate – Even if the Will is there but not registered, the claimant, through the Will, is sometimes asked to bring the succession certificate from the court. A succession certificate is generally required for a moveable property like bank account balances, shares, securities etc.

Admissibility and Value of the Wills are in question in Litigation matters

Where the Will is in question in Litigation matters, the Will, whether registered or unregistered, needs to be proved as per the requirements of the law. If such Will is to be executed in litigation, then the same can be proved by complying with the requirements of proving the Will. Following are the requirements:

1. 1. Signature of the testator.
   2. The Witnesses must duly attest to the Will.
   3. At least one of the witnesses should have appeared before the court, proving the execution of the court.

Wills Made in India by NRIs Pertaining to Foreign Properties

When a Will document is made by an NRI pertaining to foreign property in India, then the law of the respective country shall prevail.

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Wills Made by NRIs in Foreign Pertaining to Indian Properties

• Wills can be made in relation to Indian properties in a foreign country.
• The Will should be preferably Probated to ensure that the Will is not contested in the Indian Courts.
• It must be attested by two attesting witnesses who can prove the contents of the Will if required.

Admissibility and Value of the Will in the property Transfer matters:

The property can be easily transferred based on a registered Will. In some states, unregistered Wills are also acceptable for property transfer. However, probate is mandatory in case of a Foreign Will in states like West Bengal, Maharashtra and Tamil Nadu.

Admissibility and Value of Wills in Litigation matters

The Wills, whether registered or unregistered, needs to be proved as per the requirements of the Law. If such Will is to be executed in litigation, then the same can be proven by complying with the requirements of proving the Will.

Wills Made by NRIs in Foreign Pertaining to Foreign Properties

In case of foreign properties, the law of that country shall prevail for such a Will.

Must read: Rights of legal heirs and property inheritance law in India

Landmark Judgement

Attesting witness to appear before the court to prove the Will document.

The Hon’ble Supreme Court in Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria & Others held the following: –

• The signature of the testator is a must.
• The Witnesses must duly attest to the Will.
• At least one of the witnesses should have appeared before the court, proving the execution of the court.
• If the appearing witness fails to prove the attestation by the other witness, then he has not been able to prove the validity and legality of the Will, and the other witness shall also have to be produced in the court.

CONCLUSION  

To conclude, it is safe to say that execution of the Will document during the lifetime of a testator is of utmost importance. With this document, the last wishes of a testator can be easily brought out, plus it reduces the chances of family disputes. It also covers the declaration of the entire estate owned by a testator. Further, on the basis of the Will, the assets can be given for charity purposes as well after the death of the testator. It is highly recommended that after making the Will, it should be registered to make it a more reliable and legally strong document.

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