Unprivileged will in India

Law
15-Dec-2022
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A "Will" is a legal document that expresses how a person's movable/immovable property should be transferred/distributed upon death. There are various types of wills, and this blog will focus on one of them, which is the unprivileged will.

What exactly is an Unprivileged Will?

To make things easier for you, we'll explain what a privileged will is.
A privileged will can be made by a member of the Armed Forces who is engaged in actual warfare or working on a specific expedition. It is also possible to create it verbally.

Under the Succession Act, an unprivileged will can be made by anyone other than those permitted to make a privileged will. The person writing the will must be of sound mind (have "testamentary capacity") and have reached the age of maturity. Otherwise, the will cannot be carried out. Because a will is nothing more than a legal declaration, certain conditions must be met to create a valid unprivileged will in India.

What conditions must be met for an Unprivileged Will to be valid?

The following conditions must be met in order to create a valid unprivileged will in India:

  • The first condition for a valid unprivileged will in India is that it be in written form. The law also requires that the words in the will be clear and understandable.
  • The creator (testator) of the unprivileged will must sign/affix his or her mark on the will, according to Section 63 of the Indian Succession Act, 1925.
  • According to unprivileged will section 63, the creator's signature/mark (or the signee on his behalf) must be placed in such a way that it reveals the creator's clear intention to put what is written in the will into action.
  • Section 63 of the Unprivileged Will Act also requires two or more witnesses to attest to the will. They must have witnessed the testator (or his authorized signatory) signing or affixing his or her mark to the will. However, a beneficiary of the will should not be among the witnesses.

What are the advantages of having an Unprivileged Will?

In India, the majority of families do not create a will. However, death is an unavoidable scenario, and having a will can help families avoid legal squabbles over property matters that may arise as a result of the death of the family's head. In this section, we will look at some of the major advantages of having an unprivileged will -

For Property Distribution:

An unprivileged will ensures that your property is distributed or transferred according to your wishes after your death. In the absence of a will, a person is said to have died "intestate." In such a case, a person's property is distributed in accordance with the relevant provisions of the Indian Succession Act of 1925 or any other Act permissible to the person's religion. If a person wishes to leave a larger share of his property to address any special needs of any of his children after his death, the unprivileged will be of assistance.

Legal complications are reduced:

Long-running civil cases can incur significant legal costs, effort, and time for a family. Having an unprivileged will in place can aid in the timely settlement/transfer of the deceased's property and save the family from costly legal wranglings or property disputes.

Ensures financial security:

There are times when one family member requires more financial assistance or security than other members of the family due to special needs or conditions. A differently-abled child, for example, may require more financial assistance throughout his life. In such a case, the family's head may decide to leave a larger portion of his estate to this child rather than distributing all of his estates equally among all of his heirs. In the absence of an unprivileged will, the deceased's property will be distributed equally among all his heirs, without regard for the differently-abled child's special needs.

Aids in maintaining an accurate asset inventory:

It is common to find that a deceased's legal heirs are unaware of his assets, which range from bank accounts to movable/immovable property. As a result of the deceased's untimely death, some of his assets may go unclaimed by his legal heirs.

As a result, it is critical to keep track of all assets and complete the formalities of creating an unprivileged will ahead of time. An unprivileged will reduces the likelihood of legal heirs losing track of a deceased's properties/assets.

How to Carry Out an Unprivileged Will?

An executor is appointed to ensure that the unprivileged will is carried out. He is given authority to ensure that the contents of the unprivileged will are carried out correctly. He is the person in charge of carrying out an unprivileged will's execution procedure under the Succession Act.

A probate court is charged with supervising the executor to ensure that the wishes expressed in the will are carried out. It is a branch of the judiciary that deals with wills, estates, guardianship, conservatorship, and other similar issues.

During the creator's lifetime, an unprivileged will has no effect. It can only be enforced after the creator's death (the testator). The inheritor (legatee) has no rights under the will until the testator dies. However, the testator has complete freedom to change the contents of his will in any way and at any time he sees fit. If an unprivileged will is found to be executed through undue influence, force, or coercion, it is declared void.

An unprivileged will can also be revoked. Unprivileged will can be revoked either voluntarily or involuntarily. Only by operation of law can an unprivileged will be revoked involuntarily. If the testator marries, his or her unprivileged will is null and void. Revocation of the will is required not only by his or her first marriage but also by any subsequent marriage. The testator can make as many wills as he wants during his lifetime, but only the last one, executed before his death, is legally binding.

What are the rules governing an Unprivileged Will?

In India, the Indian Succession Act of 1925 usually governs succession issues. Personal laws, however, come into play for the unprivileged will in India. Muslim Personal Law is one example of unprivileged will governance in family law. In this case, matters of succession and inheritance in Muslim families are governed by the execution of an unprivileged will in family law. 

According to this, a Muslim may dispose of one-third of his remaining property after paying debts and funeral expenses, without the consent of his heirs. Similarly, in India, the Parsis and Christians have their own succession rules that are governed by family law.

The author of an unprivileged will is not required by law to register it. However, if the will has been registered with the Government Sub-registrar in accordance with the provisions of the Indian Registrations Act, 1908, the validity of the will cannot be charged after the creator's death.

FAQs

Can I change or modify the terms of an unprivileged will?

You certainly can. According to the Indian Succession Act of 1925, the creator (testator) of the unprivileged will has the right to change/alter the contents of the will at any time.

I made an illegitimate will. Can it be implemented during my lifetime?

No. During the creator's lifetime, an unprivileged will has no effect. It can only be enforced after the creator's death (the testator). The inheritor (legatee) has no rights under the will until the testator dies.

I made an illegitimate will. Do I have to sign up for it?

It is advisable to consult with a will lawyer before recording and registering your unprivileged will. You are not required by law to record your will, but having it registered with the Sub-registrar in accordance with the provisions of the Indian Registration Act, 1908, can provide added protection. The registered will's validity cannot be charged after your death.

About The Lawyer:

Adv. Kawaljit Singh Bhatia is an Advocate on Record in the Supreme Court of India and appears regularly in the Supreme Court of India, Delhi High Court and various Courts and Tribunals in Delhi. Singh did his BBA LLB from Symbiosis Law School, Pune. Singh has a diverse experience of more than 14 years of working with Corporate as well as Private clients. He has the distinction of working with top tier firms like Cyril Amarchand Mangaldas and Trilegal. He has handled various important matters like the Maggi Matter, the 2G matter, the Delhi Electricity Tariff matter, Explosives Matter, etc. Singh has also worked closely with top senior counsels in the country. Singh specializes in the field of Litigation. He is also an esteemed member of the Supreme Court Bar Association, Delhi High Court Bar Association and International Council for Jurists (U.K). Singh strives to being cost effective, expedient and effective justice and legal reliefs to his Clients.