Wills In The Indian Perspective

Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

INTRODUCTION

A Will mainly aims at:

• Disposition of property
• Being made according to the wishes of the testator

Its primary Characteristics are:

• It takes effect after the death of the testator
• It is revocable during the lifetime of the testator

KINDS OF WILLS

1. Conditional/ Contingent Will:

• This is only enforceable in the event of the happening of the mentioned contingency

2. Joint Will:

• Two or more persons may agree to make a conjoint will
• This does not imply joint ownership

3. Mutual Will:

• Two testators may confer reciprocal benefits through this instrument

4. Duplicate Will:

• This is for safety purposes
• One copy stays with the testator
• The duplicate copy is kept with a bank/ executor/ trustee
• Mutilation /Destruction of testator's copy revokes the Will
• Both copies must be duly signed and attested

5. Concurrent Will:

• This is generally used for disposition of properties in different countries
• They are to be treated as independent of each other

6. Privileged Will:

• A soldier in actual warfare may pronounce his will orally before two witnesses

ADVANTAGES OF A WILL

• Avoidance of any family dispute by clear disposition of property in the will
  
  
  • Easy transmission of property on the basis of the will
  • Properties can be earmarked/apportioned for each beneficiary, leading to avoidance of dispute amongst legal heirs
• Equitable distribution of property not necessary.
• Some legal heirs may be excluded.
• Disputes between legal heirs is averted.
• Fraudulent family members can be excluded
• Sensible choice today
• Advantageous from the tax planning perspective
• Special responsibilities can be catered to towards a needy family member
• Special provision can be made for non family members
• If No will,
  
  
  • you may be required to still go to the court for Letter of administration of properties, and
  • if only moveable properties left, one may be asked to obtain succession certificate from the court.
• Usually Banks for bank accounts having good sum of money in the account or lockers /companies w.r.t. shares etc., insist upon succession certificate.
• If there is a dispute who is the legal heir, this is the easiest way of planning.
• Corporate restructuring / settlement after death.

WHO CAN MAKE A WILL?

• The person should be of sound mind
• The person should be a major
• Person with disability (impaired hearing, vision or speech)
• An insane person in a lucid interval of sanity
• Foreigners and convicts

The following cannot make a will:

• A person who is intoxicated or ill to a level that hampers his comprehension
• Corporate bodies are incapable of making a will

ELIGIBILITY FOR MAKING A WILL

• As has been provided for in Section 59 of the Indian Succession Act, the following are the basic criteria for making a will:
  
  
  1. Testamentary capacity and sound disposing mind
  2. Knowledge of contents
  3. Free from undue influence/ fraud/ coercion
  4. Voluntary act

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The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.