"Law of Wills" For Common Man

The Indian Succession Act, 1925 (ISA) is the law governing Wills and matters relating thereto. It applies, inter alia, to Hindus.

It is also relevant to mention that in terms of Section 30 of the Hindu Succession Act, 1956 (HSA), any Hindu may dispose of by Will or other testamentary disposition, such as Family Trust Deed, assignment of right to manage temples etc., any property, which is capable of being so disposed of by him in accordance with the provisions of the ISA, or any other law for the time being in force and applicable to Hindus.

The expression "Will" is defined in Section 2(h) of the ISA as follows;

"Will means the legal declaration of the intention of the Testator with respect to his property which he desires to be carried into effect after his death".

It is advisable at this stage itself to understand the meaning of the expression "Codicil". This expression is defined to mean "an instrument made in relation to a Will, and explaining, altering or adding to its dispositions, and shall be deemed to be part of the Will".

Under General Clauses Act, "Will" includes a Codicil and every writing/ making a voluntary posthumous disposition of property.

Chapter XXVI of the Rules relating to the jurisdiction of the High Court on its Original

Side deals with testamentary and intestate jurisdiction. In Rule 369, the expression "Will" is defined to include Codicil.

The emphasis is on the intention of the Testator. The Kerala High Court has observed as follows:

"the fundamental testamentary interpretation relating to Wills and Codicils remain the specific intent expressed in the plain language of the Will"^[1].

Q2. What are the essential characterises of a Will?

• There must be a legal declaration;
• The declaration must be with respect to the property of the Testator; and
• The declaration must be to the effect that it is to operate after the death of the Testator, i.e. it should be revocable during the life of the Testator.

It is necessary to make a brief comment on the above three characteristics of the Will.

The expression "Legal Declaration" means that the document purporting to be a Will must be legal, i.e. in conformity with the provisions as regards the execution and attestation as provided in Section 63 of the ISA and must be by a person competent to make it. In other words, by a person who is not a minor and is of sound mind.

Further, the declaration should relate to the property of the Testator which he wants to dispose of. If the declaration contains no reference to the disposal of the property but merely provides for a successor or appoints a manager to the property it is not a Will. The expression "Property" is not defined in any enactment. Hence, one has to go by the general meaning of that expression. Broadly, it can be stated that any asset in respect of which the Testator has acquired title can be covered by the expression his property.

The declaration in relation to disposal of the property of the Testator must be intended to take effect after his death. If the declaration is to carry into effect his intention immediately, then, it is not a Will. The essence of Will is that it must be revocable during the lifetime of the Testator.

It may be stated that any document to qualify for classification as a Will must satisfy the above three criteria.

Q3. What are different kinds of Wills?

The ISA recognises two different kinds of Wills, namely, (i) Unprivileged Wills and (ii) Privileged Wills.

The expression "Privileged Wills" is defined in Section 65 of the ISA. It states that any soldier being employed in an expedition or engaged in actual warfare, or an airmen so employed or engaged, or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a Will made in the manner provided in Section 86 of ISA.

The mode of making and rules for executing Privileged Wills are given in Section 66 of ISA.

As this note is intended for senior citizens, the provisions relating to Privileged Wills are not relevant for them and hence the same are not discussed in this note.

It may be noted that all Wills, other than "Privileged Wills", fall into the category of "Unprivileged Wills".

Q4. Who is competent to make a Will?

Every person of sound mind, who is not minor, may dispose of his property by Will. (Section 59 of ISA).

This Section has four explanations, which provide as follows;

• A married woman may dispose by Will any property, which she could alienate by her own act during her life;
• A person who is deaf/dumb/blind can make a Will, if he/she is able to understand what he/she is doing; and
• An insane person can make a Will during the period when he is of sound mind; and
• Any person who is not capable of knowing what he/ she is doing by reason of illness/intoxication/ any other reason, cannot make a Will.

As may be seen, it is important that a person making the Will and thereby disposing the property must be of sound mind. In legalistic language, it is stated that a person must have "Sound Testamentary Capacity". In order to satisfy the criteria of "Sound Testamentary Capacity", three conditions must exist simultaneously. They are (i) the Testator must understand that he/ she is giving his property to one or more objects of his/ her regard (ii) he/she must understand and recollect the extent of his/her property; and (iii) he/ she must also understand the nature and extent of claims upon him/ her both of those whom he/ she is including in his/her Will and those whom he/ she is excluding from the Will.

It is desirable to note here that in terms of Section 61 of ISA, a Will or any part of a Will, the making of which has been caused by fraud or coercion or by such importunity as takes away the free agency of the Testator, is void.

Q5. Does ISA provide for any specific manner/ mode for execution of Will?

Section 63 of the ISA provides for the manner in which the Will is to be executed. This Section provides as follows;

• The Testator shall sign or shall affix his mark to the Will.

Alternatively, it can be signed by some other person in his presence and by his direction;

• The signature or mark shall be so placed that it shall appear that it was intended to give effect to the writing as a Will;

(iii) The Will needs to be attested by two or more witnesses, who have seen the Testator or some other person sign or affix his mark;

(iv) The witnesses should have received from the Testator personal acknowledgment of his signature or mark; or of the signature of such other person;

• Each witness shall sign the Will in the presence of the Testator; and
• There is no particular form of attestation.

The provisions as listed above in respect of the Will apply also to the Codicil.

It may be noted that under the General Clauses Act, 1897, the expression "sign" with reference to the person who is unable to write his name includes "mark".

It has also to be noted that though the Testator can execute the Will by affixing his mark, the attesting witnesses are to sign and do not have the liberty to affix their mark.

Q6. Is it possible to revoke the Will or codicil?

Sections 62 and 70 of ISA deal with revocation of the Will.

It has to be borne in mind that Will of a living person does not come into operation on execution, but only upon death of a person making the Will. During the lifetime of the maker of the Will, it is ambulatory in nature. In other words, a property not in existence at the time of execution of the Will could be a valid subject matter of bequest and a property listed in the Will may be sold away before the death of the Testator.

It has to be borne in mind that Will is not an instrument of transfer, but an instrument of devolution.

It is, therefore, always revocable during the lifetime of the maker of the Will. In fact, severability is one of the criteria of a valid Will.

Section 70 of ISA lays down the circumstances in which the Will or codicil stands revoked. The circumstances are;

• Marriage; (please see Note below)
• Execution of another Will or Codicil or some writing declaring an intention to revoke the same which is executed in compliance with the procedure for execution of the Will;
• Burning or otherwise destroying the same by the Testator or by some person in his presence and by his direction with the intention of revoking the same.

Note: It may be stated that the provision relating to revocation of Will as a result of marriage is not applicable to Hindus. In other words, a Will made by Hindu Testator does not stand revoked by his/ her marriage subsequent to the execution of the Will, by reason of such marriage.

Q7. Is it necessary to register a Will with the office of Sub Registrar of Assurances under the Registration Act?

It is necessary to look into the provisions of the Indian Registration Act, 1908, to answer this question. Section 17 of the said Act enumerates a list of documents which are compulsorily registerable. The list in Section 17 does not list "Will" as a compulsorily registrable document. Hence, it follows that there is no legal obligation to register the Will. In other words, a Will which is not registered is as valid as the registered Will, if it is otherwise in compliance with the provisions relating to Wills specified in the ISA.

However, it is significant to note that Section 18 of the Registration Act enumerates the instruments, the registration of which is optional. Sub section (e) of Section 18 specifies "Will" as an instrument, the registration of which is optional.

The mere fact that a Will is not registered does not make it improbable, much less impossible that the Will was executed. The Supreme Court has held categorically that to draw adverse inference against the genuineness of the Will, if the same is not registered, is not warranted by law^[2].

Mere registration does not do away with the requirement of proof of Will in the event of challenge. The genuineness cannot be presumed. Registration, by itself, cannot explain the suspicious circumstances surrounding the execution of the Will. Similarly, it is not permissible to contend that nonregistration is itself a suspicious circumstance.

The question naturally arises whether the maker of the Will derives any advantage by exercising the option to register the Will pursuant to Section 18 of the Registration Act. The process of registration establishes that there exists in the Office of the Registrar a document, being the Will made by certain individual. It is also indicative of the fact that the maker of the Will admits execution of the Will. Hence, prima facie, the registration confers on the Will certain degree of authenticity. However, even a registered Will can be challenged, like unregistered Will, on grounds of undue influence, coercion, fraud or importunity.

Q8. Is there any provision/ procedure for lodging the Will with the Office of the Sub Registrar of Assurances without registering the same?

If a person does not wish to register his Will and yet desires to have some nature of authenticity conferred on the Will, the Registration Act has certain provisions for the purpose.

Section 42 provides, inter alia, that any Testator or his duly authorised agent can deposit with the Registrar his Will in a sealed envelope/ cover, with the name of the Testator and his agent, if any, together with a statement of the nature of the document.

The Registrar is required to transcribe in Register Book No. 5 the superscribed portion of the envelope/ cover together with time, date, year etc as also the name of the person identifying the Testator. Thereafter, the Registrar is expected to keep the same in the fireproof box.

The Testator can withdraw the cover/ envelope so deposited by submitting an application for the purpose.

On the death of the Testator, an application can be made to the Registrar, for copy of the Will. The Registrar, after making a copy, is required to redeposit the Will in the fireproof box.

Q9. Can an executed Will be changed partially or completely after registration?

In the ISA, Section 62 specifically provides that 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. Further, the ISA defines the expression "Codicil" to mean an instrument made in relation to a Will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the Will.

As stated above, the Will becomes operative only after the death of the Testator. It therefore does not create any right in favour of any person, till the demise of the Testator. Hence, it is perfectly open to the Testator to discard the Will executed by him completely and write an entirely new Will and/ or amend the Will in respect of certain portions of the dispositions made in the original Will.

As a result, even after registration of the Will, the right of the Testator to amend the Will and/ or revoke the Will is not affected in any manner. In other words, even after registration of the Will, the Testator can amend and/ or revoke the Will.

Q10. If the first Will is registered and subsequently a Codicil or fresh Will is made, is it obligatory to register the fresh Will?

As discussed, in terms of Section 18 of the Registration Act, the registration of the Will is optional. Hence, whether it is the first Will or a subsequent Will, the same principle Will apply irrespective of the fact of registration of the first Will. However, it is necessary to take into consideration some practical aspects. If the first Will is registered and subsequent Will is not, it can mislead a person who may, relying on the registered Will, stake a claim as per the dispositions in that Will. The executor and/ or the legatee will then have to establish that notwithstanding the registered Will, the same has been revoked and new Will or Codicil is executed. Hence, prima face, if the first Will is registered, it is advisable that any subsequent codicil or Will is also registered.

Q11. Does Will attract stamp duty?

Under the Indian Stamp Act, as also certain State Stamp Acts, there is a Schedule listing instruments which attract stamp duty and the amount of stamp duty payable thereon. In neither of the enactments, Will is listed as an instrument which attracts stamp duty. Hence, Wills do not attract any stamp duty.

Q12. Is it permissible to confer a benefit on the witness and/ or Executor under the Will?

There is no bar under ISA to witness to the Will or Executor of the Will being beneficiaries under the Will. However, in terms of section 141 of ISA, the Executor cannot take legacy unless he proves the Will or otherwise manifests an intention to act as Executor.In this regard Section 67 of Succession Act describes the Effect of gift to attesting witness.—A Will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting or the wife or husband of such person or any person claiming under either of them. Explanation.—A legatee under a Will does not lose his legacy by attesting a codicil which confirms the Will. John Vallamattom and Another v. Union of India (2003) 6 SCC 611

Q13. What is the nature of properties which can be disposed of under the Will?

Generally speaking, all assets which are owned by the Testator can be given away by Will. Section 30 of the HSA provides, inter alia, that any Hindu may dispose of by Will or other testamentary disposition any property which is capable of being so disposed of by him (or her), in accordance with the provisions of ISA or any other law for the time being in force and applicable to Hindus.

An explanation to the Section explains that the interest of a male Hindu in a Mitakshra Coparcenary property 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 It may be added that the ISA, in the definition of the expression "Will" says that it is the declaration of the intention of the Testator with respect to his property.

There is no other provision in the ISA which specifically permits or prohibits any particular property from being disposed of.

In conclusion, broadly speaking, person can dispose of by Will all property which is owned by him, i.e. the property in respect of which the title has vested in him.

The nature of assets, i.e. immovable or movable is not at all relevant. Hence, immovable property, movable assets, such as household equipment, vehicles, cash, ornaments, securities in the form of shares, bonds, units in mutual funds etc, share in HUF property can be given away in the Will. It is important to note that Will can also cover future properties, i.e. the properties which may be acquired by the Testator after execution of the Will. However, it is necessary to take note of certain aspects, which are discussed below

(i) Immovable property

The expression "immovable property" is generally understood as meaning, a plot of land/ constructed house/ flat/ apartment etc.. However, it needs to be clarified that "interest in immovable property" is treated as "immovable property" by the Courts. For instance, if the Testator has acquired a plot of land on Lease and the term of the Lease has not expired, the Testator can, bequeath his interest in the unexpired period of the Lease. Needless to add, such right can be exercised, subject to the terms of the Lease and provisions of applicable law.

(ii) Jointly owned property

Very often, particularly in the case of inherited immovable property, though the property is owned jointly by the heirs, the shares of each of the joint owners is not determined. In such situations, the Testator can give by Will only his undetermined share in the said property. The legatee/s in the Will then step into the shoes of the Testator, after the death of the Testator and become co-owner(s) of the said property along with other owners.

(iii) Flat in housing co-operative society or Apartment Owners Association

Generally speaking, the housing cooperative societies or associations of apartment owners require their members to nominate another person for effecting transfer of the interest after their death.

The Supreme Court, while determining a case which had arisen under the West Bengal Co-Operative Societies Act, 1983, observed, inter alia, that having perused the aforesaid provisions, there can be no doubt, that where a member of a co-operative society nominates a person in consonance with the provisions of the Rules, on the death of such member, the Co-operative society is mandated to transfer the share or all the interest of such member in the name of the nominee "…………………….. that would have no relevance to the issue of title between inheritors or successors to the property of the deceased"^[3]. The Supreme Court has, therefore, said that mere nominations does not make the nominee owner of the right, title and interest of the deceased member in the shares and flat. The , nomination is not akin to the gift by a Will. Hence, the nominee holds the interest of the deceased member in the shares and flat, not as owner but as trustee for the heirs of the deceased. In other words, the heirs of the deceased can stake their claim to the flat in consonance with the law.

In view of the above legal position, if the Testator desires to gift the flat to the nominee, it is necessary to make a bequest in the Will in favour of the nominee for conferring on him the title to the shares held and the flat allotted.

Similarly, it is perfectly open to the Testator to bequeath the flat in favour of any person other than the nominee.

(iv) Investments such as shares, bonds held physically or in Demat Accounts

These can be bequeathed by the Testator, if the same are held by the Testator in his name. If however, the same are held jointly with any other person, as is the case very often, the Testator can bequeath his interest in the shares/ bonds and other securities.

Even if the Testator intends to bequeath the shares/ bonds/ securities to the joint holder, it is advisable to make a specific bequest of the interest of the Testator.

A question is often raised in respect of bank accounts/ investments which are held jointly with either / or survivor mandate. It is generally presumed that the cases where there is joint ownership with either/ or survivor mandate, the surviving holder Will be the owner of the moneys in the account and/ or investments. However, it is debatable whether either/ or mandate confers ownership of the interest of the deceased holder on the surviving holder in the absence of a specific gift in favour of the joint holder. It is, therefore, advisable to make a specific bequest of the interest in the jointly held bank accounts and/ or investments either in favour of the joint holder or such other person as may be chosen by the Testator.

It may be stated that in cases where either/ or mandate is given, bank can get a good discharge if it pays the amount to the surviving account holder. However, such surviving account holder does not necessarily become the owner of the moneys. The surviving account holder holds the amount in trust for the heirs of the deceased account holder.

Q14. What is the procedure for settlement of claims in respect of deceased depositors?

In this connection attention is invited to an extract from RBI Master Circular No. RBI/2015-16/5 DCBR.BPD.(PCB). MC.No: 6 /13.01.000/2015-16 dated July 1, 2015 addressed to The Chief Executive Officers of All Primary (Urban) Co-operative Banks.

In the case of deposit accounts where the depositor had utilized the nomination facility and made a valid nomination or where the account was opened with the survivorship clause ("either or survivor", or "anyone or survivor", or "former or survivor" or "latter or survivor"), the payment of the balance in the deposit account to the survivor(s)/nominee of a deceased deposit account holder represents a valid discharge of the bank's liability provided : (a) the bank has exercised due care and caution in establishing the identity of the survivor(s) / nominee and the fact of death of the account holder, through appropriate documentary evidence; 22 (b) there is no order from the competent court restraining the bank from making the payment from the account of the deceased; and (c) it has been made clear to the survivor(s) / nominee that he would be receiving the payment from the bank as a trustee of the legal heirs of the deceased depositor, i.e., such payment to him shall not affect the right or claim which any person may have against the survivor(s) / nominee to whom the payment is made.

Q15. What is Probate?

The expression "Probate" is defined to mean the copy of a Will certified under the seal of a Court of competent jurisdiction with a grant of administration of the estate of the Testator.

Which court has the power to grant Probate?

Jurisdiction of Courts for granting Probate/ Letters of Administration.

Section 264 confers jurisdiction on District Courts for granting and revoking Letters of Administration in all cases within the District. This provision needs to be read with Sections 265 and 270 of ISA. Section 265 confers power upon the High Court to appoint such judicial officers within any districts as it thinks fit to act for District Judge as delegates for the purpose of granting Probates or Letters of Administration in on contentious cases within such local limits as it may prescribe.

It has to be noted that this power is given only to those High Courts which are established by Royal Charter. The other High Courts need previous sanction of the State Government for exercise of this power.

In terms of Section 270, the District Judge can grant Probate of Will or Letters of Administration, based on the duly verified application, to the effect that the Testator or intestate had, at the time of demise, fixed place of abode or any property, movable or immovable within the jurisdiction of the Judge.

In Calcutta, Madras and Bombay, the High Courts have Original Jurisdiction to try and dispose of cases under the Testamentary and Intestate jurisdiction as provided for under the respective High Court Original Side Rules.

It may be noted stated that Applications for Probate and Letters of Administration attract court fees.

Q16. Is it obligatory to obtain Probate?

There is no statutory obligation to obtain Probate/ Letters of Administration. However, if an immovable property is involved, and the legatee seeks to transfer the property the office of the Sub Registrar of Assurances may demand Probate/ Letters of Administration. Similarly, banks, very often, insist on production of Probated Will. Hence, it is advisable to obtain Probate.

However, the provisions of Section 213 are relevant. It provides, inter alia, that no right as executor or legatee can be established in any court, unless a court of competent jurisdiction in India has granted Probate of the Will under which the right is claimed or has granted Letters of Administration with the Will annexed…..

This provision is applicable to all Wills/ Codicils made within the local limits of the Ordinary Original Civil Jurisdiction of the Bombay High Court and the Wills/ Codicils made outside the aforesaid jurisdiction of the Bombay High Court in so far as the same relate to immovable property situate within those territories.

It is important to note that in terms of Section 211, the property of the deceased vests in the executor on his acceptance of the office and the executor derives the tittle from the Will and becomes representative of the deceased. It is not necessary for the executor to obtain Probate for acquiring title. In the event a dispute relating to the property of the Testator arises, the executor can represent the estate of the Testator even before grant of Probate. However, no decree can be passed before Probate is obtained^[4].

Q17. Is there any prescribed format in which the Court issues the Probate?

Yes. The ISA in Schedule VI sets out the Form of Probate in which the Court is required to issue Probate

Q18. Who can apply for Probate?

In terms of Section 222 of the ISA, Probate shall be granted only to an executor appointed by the Will. The appointment may be express or by implication. The Probate cannot be granted to a minor or person of unsound mind.

If the executor renounces or fails to accept executorship within the prescribed time, Court may grant Letters of Administration to the person entitled for it.

Q19. What is the effect of grant of Probate?

Once the Probate is granted, it establishes the Will from the death of the Testator and renders valid, all action of the executor during the interim period, i.e. the time of the death of the Testator and the grant of Probate^[5].

Probate is conclusive evidence of the testamentary capacity of the Testator and due execution and validity of the Will. The finding of the Probate court as to the due execution of the Will is conclusive.

The grant of Probate vests all the property in the person in whose favour the Probate is granted.

Q20. What is the role and function of the Court's having Testamentary jurisdiction?

Upon filing of the Petition for Probate the Court Registry scrutinizes the Petition, directs the Petitioner to deposit Court fees, deposit Original Will; if Consent Affidavits are not filed legal heirs of the deceased then issue Citations to legal heirs as well as the Citations to be affixed at the conspicuous place on the Notice Board of High Court and Office of the Collector; Affidavits proving service of Citations; if Caveats are not filed; further Scrutiny is done and grant is issued;

Q21. What is Letters of Administration?

This expression is not defined in the ISA. However, the expression "Administrator" is defined to mean, a person appointed by competent authority to administer the estate of the deceased person when there is no executor..

Q22. When is Letters of Administration issued by the Court?

Section 218 provides, inter alia, that when a Hindu person dies intestate, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased persons' estate.

If several such persons apply for such administration, the court has the discretion to grant the same to any one or more of them.

It may be noted that the definition of the expression "administrator" provides that administrator may be appointed when there is no executor.

The above definition suggests that even if a person has made a Will, but not appointed an executor, administrator can be appointed.

Thus, while section 218 speaks of grant of Letter of Administration to the heir(s) of a person who dies intestate, by reason of the definition referred to above, even if a person has made a Will, but not appointed an executor, the administrator can be appointed.

To sum up, Letters of Administration of an estate can be issued under two circumstances, namely, (i) when a Hindu person dies intestate; and (ii) when a person makes a Will but does not appoint an executor.

Q23. What is the effect of grant of Letters of Administration?

Letters of Administration grants to the Administrator all the rights belonging to the intestate as effectually as if the administration had been granted at the moment of his/her death. In other words, whenever the administration is granted, it relates back to the moment of death of the person who died intestate.

There are innumerable provisions in the ISA in respect of duties and powers of persons in whose favour the Probate/Letters of Administration are granted, as also the various situations that may arise in the course of performance of their duties. These provisions are not discussed as the same are not considered relevant for the purposes of this note.

Q24. What is the procedure for obtaining Probate/Letters of Administration?

The Bombay High Court (Original Side Rules? 1980 as amended from time to time set out the procedure for obtaining Probate/ Letters of Administration.

Q25. What are the consequences if Will is not executed?

If the Will is not executed, on occurrences of the death, the person is considered as having died intestate. It has to be noted that if a person makes a Will in respect of part of his property only, then, he is deemed to have died intestate in respect of all the property of which he has not made a testamentary disposition which is capable of taking effect. Part V of the ISA deals with intestate successions.

However, the same does not apply, inter alia, to the property of any Hindu. The law relating to intestate succession in respect of Hindus is laid down in HSA which is discussed below.

In terms of Section 8 of HSA, the property of a male Hindu dying intestate shall devolve according to provisions of Chapter II, dealing with the intestate succession.

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

As stated above, the Schedule to HSA lays down a list of heirs who become entitled to the property of a male Hindu dying intestate. Section 9 of the HSA provides, inter alia, that those in class I shall take simultaneously and to the exclusion of all other heirs. As regards heirs in class II are concerned, they would become entitled only if there is no heir in class I. Between themselves, they become entitled in the orders of the entries. In other words, those in entry 1 will get priority over those in entry 2 and so on.

Q26. Are there any rules for division of the property among heirs in Class I and Class II?

Sections 10 and 11 of the HSA specify the rules for division of the property among the heirs in class I and II respectively.

Section 10 of HSA provides that the property of an intestate shall be divided among the heirs in Class I of the Schedule in accordance with the following Rules.

10. Distribution of property among heirs in class I of the Schedule.—The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:— Rule 1.— The intestate's widow, or if there are more widows than one, all the widows together, shall take one share. Rule 2.— The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3.— The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share. Rule 4.— The distribution of the share referred to in Rule 3—

(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters gets equal portions; and the branch of his predeceased sons gets the same portion;

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.

Further, section 11 of HSA states, inter alia, that the property of an intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they share equally.

Q27. What are the provisions in HSA in the event of female Hindu dying intestate?

According to Section 15 of HSA, the property of female Hindu dying intestate, shall devolve as per the rules set out in Section 16,

• Firstly, upon, sons, daughters (including children of predeceased son or daughter) and husband;
• Secondly, upon heirs of husband;
• Thirdly upon, mother and father;
• Fourthly upon, heirs of father; and
• Last upon, heirs of mother.

Q28. Are there any specific rules relating to distribution amongst those who are entitled to the estate of the female Hindu dying intestate?

Section 16 of HSA provides as follows;

The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the following rules, namely: -

Rule 1: Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously

Rule 2: If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death.

Rule 3: The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death

The heirs specified in (b)(d) and (e) of Sub section (1) and in Sub section (2) of Section 15 shall be in the same order and according to same rules as would have applied if the property would have been that of father or mother or husband and such person would have died intestate in respect thereof immediately after the death of intestate.

Q29. Can 'Will' be an instrument of tax planning? If so, how?

The author is not familiar with the tax laws to comment on this issue. However, an extract from "Halsbury's Laws of India" – Second Edition – Vol 38 on 'Wills and Succession' is given below.

"In compiling the total income of a previous year of any person, any income received by an individual as a member of HUF out of the income of the family or its estate, other than income which he converts from separate property into family property will not be included in his total income. Therefore, a bequest under a Will to HUF of which a person is a member, instead of a bequest to a person in his individual capacity has the effect of creating a new taxing entity, which enjoys an exemption limit applicable to it under the finance legislation from time to time".

Q30. What is the relationship between Hindu Succession Act and Indian Succession Act?

ISA is the law which deals with intestate succession and also testamentary succession. The law relating to Wills is part of the testamentary succession and it applies to Hindus. It may be noted that the provisions relating to intestate succession in the ISA do not apply to Hindu, Muhammadan, Buddhist, Sikh or Jaina. The provisions of HSA which are attracted in the event of intestacy of Hindu male or female have been already discussed.

A list of precautions to be taken while preparing a Will is given in Annexure I.

Annexure I

Precautions to be observed in preparing the Will

• To the extent possible, the Will should be typed and printed on ledger paper or on A-4 white paper.
• If the Will is handwritten, it should be ensured that it is written in clear, legible handwriting, without any overwriting, cancellations etc.
• It should be written in the language with which the Testator is fully familiar and understands.
• There should be complete clarity with respect to the proposed distribution of assets.
• It is advisable to ensure that none of the legatees are witnesses though there is no such prohibition in law.
• The Testator should initial or put his full signature on each page of Will.
• The Will should clearly state the date on which it is executed.
• It should avoid any extraneous remarks or comments which can lead to controversy at a later date.
• The assets, particularly immovable properties/assets should be clearly described fully. It is customary to give full description of the immovable assets in a separate schedule, which is part of the Will.
• The list giving particulars of Bank Accounts; Demat Accounts with correct numbers and branch addresses are always advantageous to the Executor of the Will whilst filing Petition for Probate;
• It should be unambiguously stated whether the Will is the first Will or by way of an amendment or in supersession of an earlier Will. A paragraph as under may also be part of the Will :

"I have revoked all my previous Wills and testamentary dispositions, if any, and declare this to be my last Will and Testament which I am making of my own free will and volition and while being in good state of health, mental as well as physical".

• It is advisable that the witnesses chosen for attestation of the Will are in younger age group.
• It is advisable to annex a certificate from a qualified registered medical practitioner to the effect that the Testator was of was of sound and disposing mind, memory and understanding and in good state of health, mental as well as physical at the time of making the Will.
• There is a tendency to annex list of movable assets to the Will. However, it has to be borne in mind that the movable assets may be sold and/or undergo changes after preparation of the Will which can possibly result in confusion or conflict Hence, it is advisable to enlist only those movable assets which are not likely to undergo any changes. For instances, gold/silver/ diamonds etc. The other movable assets can be described in general terms such as furniture, gadgets, kitchen equipment etc.
• If one proposes to make a bequest of interest in any property absolutely to any person, but also give a direction regarding employment or application of such fund, the legatee shall be entitled to receive the fund as if the Will did not contain any such direction.
• If any of the heirs is to be excluded from legacy for any reason, it should be stated clearly, preferably recording briefly the reasons for such exclusion.

(xvii) If a legacy is to be given to any person who is not an heir, the reasons for grant of such legacy should be recorded briefly.

Author: A.G.Karkhanis Advocate, High Court (ag_karkhanis@yahoo.co.in). Views are personal.