There are different types of Will:-
Simple Will is a document whereby a person bequests both moveable and immovable assets in straight forward manner without providing details of all properties. For example - a Will where maker of Will without giving details of all properties makes a general statement that:-
I own many properties including immovable and movable – details of which are known to my family.
I hereby bequeath ____% of all my immovable and movable properties to my spouse, and _____ % to be equally distributed to my children.
Such Will is made generally in one or two pages, with or without Executor / Guardian. However, many a time there are chances of misunderstanding, confusion in the minds of family to arrive at list of properties owned by you, hence it is recommended and advised to provide maximum details of all properties for clarity. It is also good practice to revise WILL at interval of every 3-5 years so that details of addition / deletion of property or addition of any new family member can be made part of your Last Will, such revised WILL is be made in succession of all past Will or Codicils.
Comprehensive Will generally covers more details like:
Name of Executor as well as Alternate Executor
Guardian for minor children
Complete details of all Immovable properties as well as joint ownership status, if any
Complete details of each and every movable properties like Insurance policies, bank accounts, jewellery, vehicles, shares, demat accounts, PF/Gratuity etc.
Details about loans, liabilities
Details about funeral expenses
Details about charity, organ donations etc.
Such Will also require revision after a gap of 3-5 years for updation of properties, family and wishes.
Conditional or Contingent Will
The Conditional or Contingent Will may be expressed to take effect only in the event of the happening of some consistency and condition and if the contingency does not happen or the condition fails, the Will shall not be legally enforceable. A conditional Will to be valid should have conditions which are valid and expectable and should not be contrary to law or immoral. Condition such as on my returning from voyages or on death of my wife or with consent of third party shall be included in a Will.
Many a time conditions about future use of properties and sell are difficult to enforce since once ownership is changed as per Will, future sell, enjoyment, use of properties will depend upon new owner and not as per your Will wishes.
Joint Will is a made by two or more person in consent whereby both bequest their assets as per their wishes individually or jointly to the person of their choice. Joint will however create liabilities and restriction in case of joint bequest as the execution of the Will is possible only on the demise of both the joint testators. Joint Will entirely depend on the clauses and condition mentioned in the Will and its interpretation. Joint will is usually made by husband and wife whereby both are willing to bequest the property to each other during their lifetime and then bequest to third person. Though a Joint Will may mention regarding all assets owned by both of them but one person cannot bequest the property owned by another unless a right is created to do so also in case if any such bequest is made beyond their individual right then such bequest will not be considered in Law and that part of Will may be degraded by court as unacceptable and only bequest regarding his assets will be considered. Joint will need to be drafted with proper care and clarification of clauses in order to avoid confusion in future. Joint Will usually ensures in case of husband and wife the property pass on to their children rather then to the widower or widow of the deceased in case of remarriage by any of the joint testator.
A Will is mutual Will when the two testators confer upon each other reciprocal benefits by either of them constituting the other his legatee that is to say , when the executants fulfills the roles of both testator and legatee towards each other but incase if the legatee and the testator are different then the Will wont be a Mutual Will. Mutual Wills are not reciprocal Will and its revocation is possible during the lifetime of either testator however in case if the testator has obtained benefit then claim against his property will also lie. It totally depends on mutual understanding between the testator and the legatee.
Mirror Will are mainly advisable in case of family members , joint property, partnership firm or in cases where the clauses and condition regarding two wills are very much similar and where by the two or more wills are to be generated with slight changes as to bequest and other details . Such Wills are easy to draft and save time and money and are easy to execute and legally more valid. In case of husband and wife they bequest their assets to each other and latter on to their children in such cases mirror will is mainly advisable as it is in simple language, easily revocable and easily understandable as well.
A testator for the sake of safety can make a Will in duplicate. One of which he can keep in his possession and the other in safe custody in bank locker or with the executor or his heirs in order for safe execution in future. Mainly in case of NRI who reside out of India can make a Duplicate Will and keep one in his custody and one in the custody of his local executor. also in case of parents whose children are NRI can make duplicate copy and keep one in the custody of their children. However in case of duplicate will it is necessary that each copy must be signed and attested in order to be valid. In case in future the testator mutilates or destroys the part in his custody, it is revocation of both.
In today’s India people have property in more than one country or there are NRIs owning many properties in India in addition to the properties owned in his country of residence, in such a situation a person prefers to draft two or more Wills rather than one single Will in order to enable easy execution of the Wills according to the law and order of the Country where the property is situated. Such different Wills by a single person shall be treated as concurrent to each other and as independent, unless there is any indication to the contrary. Concurrent Will can be made for property located in same country as well however it is more convenient in that case to draft a Single Will.
Intention of the testator is one of the essential condition for a will to be legally valid sham wills are wills which are purported according to all the required formalities of a will but still if it is shown that such wills were executed for some collateral object or with out the intention of the testator is considered as invalid in the law.
Holograph wills are hand written wills where by the testator write the entire will by his own hand naturally since it is hand written has more genuineness related to it however it need to satisfy all required statutory condition . it is usually in case of military persons who are on war or outside posting where computers or modern amenities are not available are usual permitted to make hand written wills which are considered as privileged wills. Holograph wills are excepted in some countries and are not accepted in other states.
Privileged and Unprivileged Wills
Under Indian Succession act a privileged Will are those wills which are made by any soldiers, air man or navy person who is willing to dispose of his will during his service period or during the course of his or her employment. A soldier does not include a civilian engineer employed by the army who has no military status. An Unprivileged Will includes all will not made by a person other then a solider or military person all unprivileged will has to satisfy all the conditions of a valid wills.
Many person feels that once WILL is made it can not be changed hence it should be made at old age. This is a complete myth and incorrect.
A WILL can be changed, cancelled at any time in life who made his/her WILL. Hence a WILL can be changed fully or in part or can be cancel in full as per wishes of person who made WILL.
When WILL is changed fully, the new WILL should have mention that all prior WILL is cancelled. Such new WILL becomes Last WILL of person.
When WILL is changed only for some clause or clauses, it is called Codicil. Hence Codicil is made when a person wants to add delete or change clause, bequeath, wishes, properties – it is called as Codicil where WILL to be continued as it is except changes made as per Codicil.
A Codicil is a supplementary document to main original WILL and it cannot stand as an independent document all alone. A Codicil cannot supersede a will its nature is not subjective but adjective. A codicil is required to be attested with two same or new witnesses and executed in the same manner as a will only then it is legally valid. Codicil should not create vagueness or confusion or contradiction with original Last WILL.
If WILL was registered, it is necessary to also register Codicil.
Executor of a WILL
Person making a WILL many a times has doubts over uncertainties of future, like:
Whether my properties will be dis
tributed as per my WILL?
Whether there would be any injustice or manipulation by ‘smart family members’ to deprive rights of other family members?
Whether family members will have required knowledge of distribution of properties as per law to avoid disputes within family, or else what is the purpose of making a WILL?
Registration of a WILL
Registration of a Will is not mandatory hence many individual when sign his/her Will, they believe that no one in family will challenge genuineness of Will or create any doubts on his Will which is witnessed by two known witnesses who can support to appear before court of law to prove that Will is genuine.
Distribution of property of Hindu person as per succession laws - if No Will
A written and a registered Will, is the best and most convenient way for you to pass on your estate to the persons whom you want to. Now what happens if a person dies without a will and to whom his/her property will pass on? The Hindu Succession Act 1956 is quite clear about it.
The property of a Hindu male dying intestate, or without a will, would be given first to heirs within Class I. If there are no heirs categorized as Class I, the property will be given to heirs within Class II. If there are no Class I or II heirs, then the property will first go to agnates (distant blood relatives of male lineage) and if no agnates are available then to cognates (distant blood relatives of male or female lineage). And if there are no cognates then the estate will go to government. The detail is as under:
If No-WILL by a Christian - Distribution of properties as per Succession Laws
The property of a Christian person died without a will would be given to the wife or husband, or upon those who are of the kindred (relation by blood through lawful wedlock) of the deceased in the following order and according to the rules herein under specified:
General Rules of Distribution of properties if No-Will is left:-
If the deceased has left behind both a widow and lineal descendants i.e. child, children or remote issue, Widow will get one-third share in his estate while the remaining two-thirds will go to the children.
If no lineal descendants have been left but other kindred i.e. father, mother, etc., are alive then one-half of the estate passes to the widow and the rest to the kindred.
And if no kindred are left either - the whole of the estate shall belong to his widow.
Where, however, the intestate has left a widow but no lineal descendants, and the net value of his property does not exceed five thousand rupees, the whole of the property will go to the widow - but this provision does not apply to Indian Christians.
Where the intestate has left neither lineal descendant, nor parent, nor sibling, his property shall be divided equally among those of his relatives who are in the nearest degree of kin to him. If there are no heirs whatsoever to the intestate, it shall go the Govt.
The rights of the widower of the deceased shall be same as above in respect of her property.
Rules of Distribution where there are lineal descendants :
After deducting the widow’s share, if he has left a widow amongst his lineal descendants the rules of distribution shall be as follows :
Where intestate has left surviving child or children, but no more lineal descendant through a deceased child, the property shall belong to his surviving child if only one or equally among all his surviving children.
Where intestate has not left any surviving child, but has left grand child or grand children and no more remote lineal descendant through a deceased grand- child, the property shall belong to his surviving grand-child if only one or equally among all his surviving grand -children.
Where intestate has left only great grand children or remote –lineal descendants, the property shall go to the surviving lineal descendants who are nearest in degree to the intestate.
Where the deceased has left behind lineal descendants of different degrees of remoteness, as for example in the case of children and grandchildren, then, the number of branches becomes important. Each branch of lineal descendants takes equal shares in the property.
Rules of Distribution where there are “no lineal” descendants :
As amongst the kindred, the father of the deceased has the highest priority. If a deceased has left behind no lineal descendant but only a father and other kindred (such as mother, brother, sister etc.), then, the father succeeds to the entire property (subject of course to the share of the widow, if any).
If there are no lineal descendants or a father, then, the deceased's mother, brothers, and sisters share equally.
If the intestate father is dead but the mother is living and if any brother or sister and the child or children of any brother or sister who may have died in the intestate’s lifetime are also living, then the mother and each living brother or sister and the living child or children of deceased brother or sister, shall be entitled to the property in equal shares only the shares which their respective parents would have taken if living at the intestate’s death. Note that on the death of the brother or sister of intestate, their share will be distributed among their children equally if more than one.
Where the intestate has left neither lineal descendant, nor parent, nor sibling, his property shall be divided equally among the nearest degree of kindred to him.
Distribution of Parsi person's properties - if No-WILL
The Following points has to be considered while distributing the property of a Parsi died without a will:
Whoever actually born in the lifetime of the deceased Parsi person or at the date of his death only conceived in the womb and subsequently born alive, is considered.
If a lineal descendant i.e a child or remoter issue dies before the deceased Parsi without leaving widow or widower or lineal descendant or widow or widower of lineal descendant, the share of such child shall not be taken into consideration.
Where a widow or widower of any relative marrying again during the lifetime of the intestate Parsi , such widow or widower is not entitled to receive any share in the property of the deceased Parsi.
Laws related to WILL by a Muslim
A "Will" is the legal declaration of the intention of the Testator [N.B: A "Testator" is a person who makes a Will] with respect to his property which he desires to be carried into effect after his death. As per the Indian Succession Act, 1925, very person of sound mind, not being a minor can dispose of his property by Will.
Probate or Letter of Administration by Court
Lots of people have confusion as to whether it is necessary to obtain Probate of the Will / Letters of Administration, so as to transfer the property acquired by a legatee.
The Will takes effect on the death of the testator and that the right as an Executor or as Legatee can be established in any Court only if Probate or LOA is obtained.
Need of a Gift Deed or Power of Attorney
Necessity of GIFT DEED
Gift deed is a transfer of certain exciting movable or immovable property made voluntarily and without consideration by one person called the donor and accepted by or on behalf of the donee. Gift deed is usually made out of love and affection.
An Estate Planning is basically the process of anticipating and arranging for the disposal of an estate during your life which includes planning your succession and financial affairs.In other words it is management & preservation of estate and also estate legacy during and beyond your lifetime.
In India majority of businesses are being run by family and they are generating good wealth but they ignorant of the importance of preserving the same over generations. The reason is that they have not done their estate planning. This has given rise to legal complexity faced by the legal heirs of the intestate at the time of taking the control of the intestate’s business resulting into loss of the business.
About Nominations and Will
Nomination is a process whereby any person who is the owner of any deposits, mutual funds, shares, insurance policies, etc. appoint one or more nominees respectively who can receive the funds/ monies standing in the credit of any of the assets wherever nominated after the death of the owner.