The HINDU WILL

It is prudent to make a Will as the division of your properties to all your legal heirs is ensured as per the law.

Section 2(L) of Indian Succession Act 1925 defines "Will" "as 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." The statutory definition of a Will means a continuous act of gift upto a moment of the donors death and though revocable in his life time is until revocation a continuous act of gift upto the moment of death and does then operate to give the property disposed of the persons designated as beneficiaries.

A Will is also described as an instrument by which a person making a disposition of his property to take effect after his decease and which is in its own nature ambulatory and revocable during his life time "As per Sec 59 of IS Act a person, not being of minor may dispose of his property by Will.

The testator of a Will means a person who makes the Will or the author of the Will. To enable the disposition of the testator's properties as per the Will the testator appoints an Executor. The persons who are entitled to the properties of the testator after his death are mentioned in the Will as Legatees or Beneficiaries. No person mentioned in the Will as Legatees or beneficiaries can be an Executor. If the testator does not appoint an Executor the Jurisdictional Court will appoint an Administrator on an application made by the legatees. The Administrator so appointed will discharge the duties of the Executor.

Probate :
As per the Indian Succession Act Probate is defined as a "Copy of the Will Certified under the seal of a Court of Competent Jurisdiction with grant of administration to the estate of the testator". As per law "a probate granted by a competent Court is conclusive of the validity of such Will until it is revoked and no evidence can be admitted to impeach it except in proceeding for revoking the Probate". Probate cannot be given to a minor or persons of unsound mind.

Probate will be issued only to the Executor of Will on an application filed under Section 222 and 276 of the Indian Succession Act in the Jurisdictional Court. If the Executor is not appointed the Court will grant a letter of Administration to any of the legatees under Section 232 read with Section 234 of the Indian Succession Act. After the Willis proved in the Court the original is to be deposited in the registry of the Court. The Court will issue a copy of the "Will" with a certificate under the seal of the Court. The copy of the Will issued to the Executor is termed as the "Probate". The Will is considered official after the Probate is granted by the Probate division of the High Court.

Codicil :
After obtaining the Probate if the testator desires to add, delete or make any changes or even cancel the Will, the testator can do so by executing a Codicil which has to be a part of the main Will and has to be proved with the Will. However if the testator has appointed a different Executor in the Codicil after obtention of the Probate, then a fresh probate both for the main Will and Codicil has to be granted by the Court. In case the Will is lost the Court may grant a Probate based on the copy of this original Will.

The obtention of Probate and Letter of Administration by the Executor and Legatees is compulsory. However there is a restriction in this case in as much as Section 57 read with Section 213 of Indian Succession Act states that in case of Hindus, Sikhs, Buddhists and Jains the provision is applicable only to Will made after 01.09.1870. Further the Will should have either been made within local limits of High Court of Calcutta, Madras and Bombay or the immovable properties should be situated in these place. The provisions are not applicable to Wills made by Hindus, Sikhs, Jains and Buddhists outside these territories or the immovable properties mentioned in the Will are situated outside these territories. The provisions also apply to Persons who are dying after the commencement of Indian Succession Act.

To sum up Probate is not required for Wills made by Indian Christians, Hindus, Buddhists, Sikhs, Jains and Mohammedans in the following cases.

a) Outside the territories of Lt. Governor of Bengal as on 01.09.1870.
b) Outside the local limit of Civil Jurisdiction of High Court of Madras and Bombay.
c) Where the immovable properties are outside the above limits.

Death of an Executor :
If the Executors dies before the Will is proved or dies after the Will is proved and before administering the Estate of the testator, the Court may agree to a universal or residuary legatee. On proving the Will letter of Administration may be granted to him. A Universal legatee is one to whom the testator has bequeathed all his properties whereas a residuary legatee is one to whom the residue is bestowed after discharging all the liabilities of the testator.

Joint Will :
Two or more persons can make a Joint Will. In the case of Joint Will, the Will comes with effect only after the death of both testators. However no probate can be obtained during the life time of either of the testators of the Will. The revocation of Joint Wills can be made at any time during their life time or after the demise of one of them. In such an event the survivor can revoke the Will. Sec 30 of Hindu Succession Act also enables a member of a Hindu Joint Family to dispose of interests in Joint family's property at the time of his death by Revocation of Will.

Section 62 of Indian Succession Act states 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. Revocation may be absolute or conditional. A Will can be revoked as follows :

a) By operation of law
b) By writing
c) By another Will or Codicil
d) By burning or tearing or otherwise destroying the Will.

Oral Will :
As per Section 57 (C) of Indian Succession Act 1925, no Oral Will can be legally made by even Hindus.
If the deceased has not made any Will then it will be known as he died intestate. In such an event the properties will be shared equally amongst all his legal heirs. When a person dies intestate the legatees will have to apply for and obtain a letter of Administration from the Jurisdictional Court. If the deceased has not left any immovable properties then his heirs will be entitled to succession certificate. In a Hindu Will the testator can bequeath his property to anyone besides his legal heirs if the property is self acquired by him. However such bequeath is not valid if the property is ancestral.

Bequeath to a Unborn Person:
As per the Hindu law no bequeath can be made to an unborn person. Section 112 & 113 of Indian Succession Act states that bequeath to a person not in existence at the date of death of the testator is void.

Appointment of Guardian:
Under the Hindu law, a father has the power to appoint by "Will" a guardian for his property. He can also appoint a guardian for his minor children.

Requisites of a Will:
Section 63 of Indian Succession Act 1925 stipulates the following requisites for preparation of a Will.
a) A Will can be made only by a person of sound mind.
b) A Will must be in writing.
c) It must be duly signed by the testator.
d) It must be duly attested by two witnesses.
e) Attestator must see the testator signing his Will.
f) The witnesses must sign in the presence of the testator.

A Will can be written on a plain paper. It is not mandatory to register a Hindu Will. However if the testator so desires the Will may be registered.

Given below is a specimen of a Will

I ............. son of ................. aged about ........... years presently residing at ............. being in prime health and mentally sound do hereby make and declare this to be my 'Last Will" and testament. I am making this Will out of my own free will without undue influence, coercion or fraud on .........

I bequeath and give all my properties in Schedule I and Schedule II in any form that I may be possessed of and entitled to my said legal heirs equally or in ratio of (mention the ratio of dimension of properties to legal heirs) absolutely subject to payment of all my debts, funeral expenses and testamentary expenses.

Signed by the within named testator ............. in the presence of witnesses who in the testators presence and at his request in the presence of each other have put their signature as Witnesses here under.

Schedule I - All moveable properties like cash, Bank / Corporate Deposits, shares, house hold articles, vehicles, ornaments etc.
Schedule II - All immovable properties like land and building.

1) Name of Witness Testator
Address

2) Name of Witness
Address

This article is written by me and is of general nature and hence an advocate may be consulted for implementation of the legal procedures if necessary.