"Death is certain, but its time is most uncertain and therefore WILL is required to be made."

Do not confuse between 'Nomination' and a 'Will'. Both are different concepts and often misconstrued. Nomination is just a trusteeship and it is not a mode of Succession. The Nominee does not become the owner of the property by virtue of Nomination. It does not take away rights of other legal heirs, may it be Society Share certificate or Bank Accounts or Shares. The nomination only indicates the hand which is authorized to receive but not the ownership. (Sharbati Devi V/s. Smt. Usha Devi, 1984 AIR SC 346). After the deceased, several persons can claim to be legal heirs as per the law, family understanding, and other arrangements can lead to a lot of bitterness and expensive litigation.

If a person dies without making a 'WILL', he or she is said to have died 'intestate'. In such a case his or her property will be inherited by the heirs of the deceased person in accordance with the Law of Succession in India. Many a times this is a complex process involving several steps, costs, lot of time and cumbersome documentation. Not being a very pleasant experience, the near and dear ones to whom the property devolves, end up being hassled by this subject after the property owners' demise. There are examples that such subjects often lead to permanent bitterness in the family and often such subjects become matters of expensive litigation.
Would we want our dear ones to suffer after us?
On the contrary, if a person dies leaving behind a 'Will' his property shall be distributed as per the terms of the 'Will' which is known as 'Testamentary Succession'.
Section 5 of the Indian Succession Act, 1925 provides different rules for Intestate Succession and Testamentary succession in India. The Act applies to all communities in India except Muslims as explained here in after.

Testamentary Succession: Testamentary succession means succession to a property of the deceased person in accordance with provisions in the last duly executed Will of the deceased.
A Will or Testament is a legal declaration by a person, the Testator, who defines and provides instructions in advance for the distribution of his or her property at death.
A Codicil Is a document that amends or improves a previously executed Will.
Will & Codicil are called Testamentary Documents.
The Indian Succession Act 1925: In India there is a well-developed system of Succession Laws that governs a person's property after his death. Indian Succession Act 1925 applies expressly to Wills and Codicils made by Hindus, Buddhists, Sikhs, Jains, Parsis and Christians but not to Mohammedans as they are covered by Muslim Personal Law.

Will:
Will is defined in section 2(h) of Indian Succession Act, 1925 as 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.
Thus, a Will is a declaration made in accordance with the formalities required by statute, of the intention of the person making it with regard to his / her property, which he / she wishes to take effect upon or after his / her death.

Amendment / Revocation of the Will possible?
Until the death the person making the Will, the will remains as a document which can be revoked or modified any time, or it can be even substituted by another such document. Codicil is defined in Section 2(b) of the Indian Succession Act, 1925 as an Instrument later on made in relation to a Will and explaining, altering or adding to its disposition, if required, and shall be deemed to form part of the Will.

Property:
Property or estate of a person may consist of self acquired various assets like (1) Immovable Properties e.g., house, factory, shop, office, farm, etc. and (2) Movable Properties e.g., jewellery, cash and bank balances, shares, mutual funds, insurance policies, recurring and fixed deposits, car, paintings etc .
While no planning is involved in intestate succession, the opportunity is lost by the person for doing the necessary while he is alive. Estate planning can be done easily through Testamentary Documents such as Wills.

Family arrangement cannot over-ride the Will!
Express desire of the testator as reflected in the Will cannot be deviated, and therefore, the so-called family arrangement if any, made without the knowledge, consent or even after the death of the testator shall be held invalid and in operative and cannot in any manner override the Will. (Chetti Balakrishnamma V. Shetty Chandra Shekhar Rao. A.I.R 1991 Orissa 332)

Capacity to Make a Will and Capacity to Take under a Will.
Subject to certain limitations every person who is of sound mind and who is not a minor may dispose of his property by Will. Even persons who are deaf, mute or blind can make a Will provided they are aware what they are doing. A married woman may also make a Will in equal capacity to that of any adult male. A person who is ordinarily insane may also make his Will during the interval in which he is of sound mind. As to acceptance of bequests under Will, there is no restriction. Thus, even a minor, lunatic or a person disqualified from taking a share on partition may be given a bequest.

Is Stamp Duty & Registration applicable for a Will? :
A Will or Codicil is not required to be stamped at all. Even registration is not compulsory though it can be registered under the Registration Act, 1908 and deposited in the Sub-Registry.
Registration does not give any special sanctity or authenticity to the Will though registration of the Will by the testator himself may prima facie show the genuineness of the Will ( C. Silva Bai V. J. Noronha Bai A.I.R 1956).
Delhi High Court has observed that it is well settled that once a Will is registered there is a presumption of its genuineness until and unless there are strong reasons which create doubt about its execution. (Arjan Dev Mitra V. Sada Nand, A.I.R 2000 Delhi).

Conclusion:
Making of a Will is not a complicated task, but it must be carefully drafted. In todays uncertain times it is always a great idea to prepare a Will. Your near and dear ones will always be thankful to you for this act of yours. If you already have made a Will but there are changes in circumstances, you must either do a Codcil or make a new will.
It is never too early to make a will!

Satya Muley

Satya is a leading Criminal & Civil Law lawyer from Western India.
He actively practices at Bombay High Court and Courts in Maharashtra, Madhya Pradesh & New Delhi.

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