Laws related to will in India

Law
13-Dec-2022
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A will is a legal document that outlines how an individual's assets and property should be distributed upon their death. It is an important document that allows an individual to plan for the future and ensure that their assets are distributed according to their wishes.

In India, the laws governing wills are primarily governed by the Indian Succession Act of 1925 and the Indian Probate and Administration Act of 1881. These laws lay out the rules for the execution, revocation, and interpretation of wills, as well as the rights and duties of executors and administrators of estates.

In addition to these acts, there are also specific laws for different communities in India such as The Hindu Succession Act of 1956, the Muslim Personal Law (Shariat) Application Act, of 1937, the Indian Christian Marriage Act of 1872, and Parsi Marriage and Divorce Act 1936 that govern the inheritance laws and related matters for the respective communities.

This blog post will provide an overview of the laws governing wills in India.

Indian Succession Act 1925

Under the Indian Succession Act, of 1925, a will is a legal document in which a person, known as the testator, expresses their wishes for the distribution of their property and assets after their death. In order for a will to be valid in India, it must be in writing and signed by the testator or by someone on their behalf, in the presence of two or more witnesses. Additionally, the testator must have the mental capacity to make a will at the time of signing it.

The will should also have to be executed with the formalities as laid down in Section 63 of the Indian Succession Act. If the formalities are not fulfilled it may lead to a situation where the will is considered invalid.

It is important to note that certain classes of property, such as joint family property, cannot be disposed of by will. In such cases, the property will be distributed according to the laws of inheritance applicable to that particular class of property.

A will can be amended or revoked at any time by the testator, as long as they have the mental capacity to do so. After the death of the testator, the will must be probated, which is the process of proving the validity of the will in a court of law.

It is also worth noting that the Indian Succession Act, of 1925 applies only to Hindus, Jains, Buddhists, and Sikhs. Muslims, Christians, Parsis, and Jews have their own personal laws regarding Succession and Will.

Indian Probate and Administration Act 1881

The Indian Probate and Administration Act of 1881 regulates the process of probating wills and administering the estates of deceased persons in India. According to the Act, a will is a legal document in which a person, known as the testator, expresses their wishes for the distribution of their property and assets after their death.

In order for a will to be valid under the Indian Probate and Administration Act of 1881, it must be in writing and signed by the testator or by someone on their behalf, in the presence of two or more witnesses. Additionally, the testator must have the mental capacity to make a will at the time of signing it.

The will must be probated, which is the process of proving the validity of the will in a court of law. This is done by filing a petition in the district court and submitting the will, along with proof of the testator's death and the witnesses' signatures. Once the will is probated, the court will issue a grant of probate, which is a legal document that serves as proof of the validity of the will.

Once the grant of probate is issued, the executor of the will, who is the person appointed by the testator to carry out the distribution of the property and assets according to the will, can begin the process of administering the estate. This includes collecting and distributing the assets, paying any debts and taxes, and distributing the remaining property and assets according to the terms of the will.

It is important to note that the Indian Probate and Administration Act of 1881 applies only to Christians, Parsis, and Europeans in India. Hindus, Jains, Buddhists, Sikhs, and Muslims have their own personal laws regarding Succession and Will.

The Hindu Succession Act of 1956

The Hindu Succession Act of 1956 regulates the inheritance of property among Hindus in India. According to the Act, a will is a legal document in which a Hindu person, known as the testator, expresses their wishes for the distribution of their property and assets after their death.

In order for a will to be valid under the Hindu Succession Act of 1956, it must be in writing and signed by the testator or by someone on their behalf, in the presence of two or more witnesses. Additionally, the testator must have the mental capacity to make a will at the time of signing it.

The will can be used to dispose of both self-acquired property and coparcenary property. The Act also recognizes the concept of testamentary succession, which means that a Hindu can make a will to dispose of their property in a manner different from that prescribed by the Act.

The Muslim Personal Law (Shariat) Application Act 1937

The Muslim Personal Law (Shariat) Application Act, of 1937 governs the laws of inheritance and succession among Muslims in India. According to this Act, a will is a legal document in which a Muslim person, known as the testator, expresses their wishes for the distribution of their property and assets after their death.

In Islamic law, a will is known as a "Wasiyyah" and it can be used to dispose of the testator's property, subject to certain limitations. For example, a Muslim cannot use a will to dispose of more than one-third of their property, and certain classes of property, such as agricultural land, cannot be disposed of by will at all.

A will can be made verbally or in writing, but it must be made during the testator's lifetime and with the testator's free will. The will must be executed in the presence of two witnesses, who must be adult and sane Muslims.

Indian Christian Marriage Act 1672

The Indian Christian Marriage Act of 1872 governs the laws of marriage and divorce among Christians in India. It does not specifically mention or regulate the process of making and probating a will, as succession and inheritance are generally governed by the Indian Succession Act, of 1925 or the Indian Probate and Administration Act of 1881.

However, it is important to note that under the Indian Succession Act, of 1925 a will can be made by a Christian in India, in the same manner as any other person, as long as it is in writing and signed by the testator or by someone on their behalf, in the presence of two or more witnesses.

Parsi Marriage and Divorce Act 1936

The Parsi Marriage and Divorce Act of 1936 governs the laws of marriage and divorce among Parsis in India. Like the Indian Christian Marriage Act of 1872, it does not specifically mention or regulate the process of making and probating a will, as succession and inheritance are generally governed by the Indian Succession Act, of 1925 or the Indian Probate and Administration Act of 1881.

However, it is important to note that under the Indian Succession Act, of 1925 a will can be made by a Parsi in India, in the same manner as any other person, as long as it is in writing and signed by the testator or by someone on their behalf, in the presence of two or more witnesses.