When the property is disposed of according to the will, such succession is called testamentary succession. The provisions of testamentary succession are also given in the Indian Succession Act, 1925, but are not applicable to Muslims. Muslims are governed by their personal laws. In the absence of a will, the distribution of assets is governed by specific Succession Acts. The article analyses testamentary succession and its statutory provision under the Hindu Succession Act, 1956.
What is testamentary succession?
In testamentary succession, before the death of a person, he bequeaths his property through a will. Basically, it means before death, a person writes a will and in that will he states that after my death such property will be given to this particular person, Such Will comes into effect only after the death of a testator.
The word testamentary has been derived from the word testament which means Will. A member of a joint Hindu family can alienate both separate properties as well as an undivided share of joint family property through a will.
Testator: Person making the will
Legatee: Person who inherits under the will
Executor: The person who is appointed to execute the provisions of the will
Statutory provision
Before the enactment of the Hindu Succession Act, 1956 a person could alienate only separate property through a will.
He had no right to alienate his undivided share of joint family property. But after the enactment of the Hindu Succession Act, 1956, Section 30 of this Act gives power to members of joint family property to alienate his undivided share of joint family property through a will.
Any Hindu may devolve his property by will in compliance with the provisions of the Indian Succession Act,1925.
Section 30 in The Hindu Succession Act, 1956
Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so 7 [disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.
Explanation.— The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this 8 [section.]
Source: https://indiankanoon.org/doc/401174/
What is Will and its advantages?
Definition: Will is defined in Section 2(h) of the Indian Succession Act, 1925, “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.
Will is a legally valid document in which a testator expresses his intention regarding his property which come into effect after his death.
- A will is a written declaration in presence of two witnesses.
- Wherein the testator mentions his wishes to distribute his assets, properties and wealth to his family, friends, relatives, etc after his death.
Advantages:
- It ensures proper distribution of assets as per your wishes
- It ensures your money goes to a desired person/ charity
- You can appoint testamentary guardian for minor children
- Exclusion of fraudulent family members
- provisions can be made for your spouse and for that matter even for any non-family members.
Who can make a will?
Any person, who:
- Is major, i.e, above the age of 18 years
- Is of sound mind,
- Is a Hindu
Checklist of good drafted Will
- Will should be in writing.
- It is not necessary to use legal language. There is not any particular format given.
- Will can be written on plain paper, using simple vocabulary. Preferably, simple words should be used.
- Will can be handwritten or in typed form.
- Testaor should ascertain all the information about the legatee, to whom the benefit is to be given, the executer, who is appointed to execute the will and the witness, who attest the will.
- A clear description of the properties
- Clear and precise details of the beneficiary. One should also mention who will inherit the property in case the beneficiary dies. It is an emotional issue but one should deal with it.
- Date, the numbering of paragraphs, cancellation of previous wills, overwriting.
- If excluding any of the legal heirs, then it is advisable to give some reasoning for it. Also not to involve any legal heirs in preparing the will.
- Conditional division of property should be avoided. If done then it must be drafted with utmost care.
- The executor should be carefully chosen: trustworthy, basic awareness of the law, someone who can execute the will by dividing the estate as mentioned in the Will.
- The description of how the residual property would be distributed: Usually a residual legatee is appointed.
- The attesting witness should sign in the the capacity of a witness. Each page should be signed by the testator and witnesses.
What is Modification/Revocation Of Will?
A will can be revoked/modified anytime during the lifetime of the maker of the will.
Modification/revocation is to be done in the same way as execution. Sound mind + two attesting witnesses
Modification by overwriting after execution is not allowed.
Revocation by burning or tearing of Will is allowed but burning or tearing must be in front of two witnesses.
Witnesses required for modification/revocation. Same witnesses as of original will are not required.
Modification/revocation of registered will need not be registered, but advisable.
Some Basic Facts
- Law deos not prescribe a format for wills.
- It can be on a plain paper. A handwritten will is called a holograph.
- No stamp duty is payable
- Registration of will is not mandatory
- A will can be revoked or updated any number of times – last will is what counts
- A will can be updated through a Codicil
- Or can contain a residual clause to cover what is not specifically mentioned or acquired later.
Conclusion
A will is a legally valid document that allows you to choose who gets your self earned assets after your death. In the absence of a will, the distribution of assets is governed by specific Succession Acts. The statutory provisions of Testamentary succession and Will have been discussed here.
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