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"Law of Wills" For Common Man

By - A.G.Karkhanis Update: 2022- 12- 26 03:42 GMT

Q1. What is a Will? Is there any enactment which governs the law relating to the
Wills?

The Indian Succession Act, 1925 (ISA) is the law governing Wills and matters relating
thereto. It applies, inter alia, to Hindus.

It is also relevant to mention that in terms of Section 30 of the Hindu Succession Act,
1956 (HSA), any Hindu may dispose of by Will or other testamentary disposition, such
as Family Trust Deed, assignment of right to manage temples etc., any property, which
is capable of being so disposed of by him in accordance with the provisions of the ISA,
or any other law for the time being in force and applicable to Hindus.

The expression "Will" is defined in Section 2(h) of the ISA as follows;

"Will means 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".

It is advisable at this stage itself to understand the meaning of the expression "Codicil".
This expression is defined to mean "an instrument made in relation to a Will, and
explaining, altering or adding to its dispositions, and shall be deemed to be part of the
Will".

Under General Clauses Act, "Will" includes a Codicil and every writing/ making a
voluntary posthumous disposition of property.

Chapter XXVI of the Rules relating to the jurisdiction of the High Court on its Original

Side deals with testamentary and intestate jurisdiction. In Rule 369, the expression
"Will" is defined to include Codicil.

The emphasis is on the intention of the Testator. The Kerala High Court has observed as
follows:

"the fundamental testamentary interpretation relating to Wills and Codicils remain the
specific intent expressed in the plain language of the Will"[1].

Q2. What are the essential characterises of a Will?

• There must be a legal declaration;

• The declaration must be with respect to the property of the Testator; and
• The declaration must be to the effect that it is to operate after the death of the
Testator, i.e. it should be revocable during the life of the Testator.

It is necessary to make a brief comment on the above three characteristics of the Will.

The expression "Legal Declaration" means that the document purporting to be a Will
must be legal, i.e. in conformity with the provisions as regards the execution and
attestation as provided in Section 63 of the ISA and must be by a person competent to
make it. In other words, by a person who is not a minor and is of sound mind.

Further, the declaration should relate to the property of the Testator which he wants to
dispose of. If the declaration contains no reference to the disposal of the property but
merely provides for a successor or appoints a manager to the property it is not a Will.
The expression "Property" is not defined in any enactment. Hence, one has to go by the
general meaning of that expression. Broadly, it can be stated that any asset in respect of
which the Testator has acquired title can be covered by the expression his property.

The declaration in relation to disposal of the property of the Testator must be intended
to take effect after his death. If the declaration is to carry into effect his intention
immediately, then, it is not a Will. The essence of Will is that it must be revocable during
the lifetime of the Testator.
It may be stated that any document to qualify for classification as a Will must satisfy
the above three criteria.

Q3. What are different kinds of Wills?

The ISA recognises two different kinds of Wills, namely, (i) Unprivileged Wills and (ii)
Privileged Wills.

The expression "Privileged Wills" is defined in Section 65 of the ISA. It states that any
soldier being employed in an expedition or engaged in actual warfare, or an airmen so
employed or engaged, or any mariner being at sea, may, if he has completed the age of
eighteen years, dispose of his property by a Will made in the manner provided in
Section 86 of ISA.

The mode of making and rules for executing Privileged Wills are given in Section 66 of
ISA.

As this note is intended for senior citizens, the provisions relating to Privileged Wills are
not relevant for them and hence the same are not discussed in this note.

It may be noted that all Wills, other than "Privileged Wills", fall into the category of
"Unprivileged Wills".

Q4. Who is competent to make a Will?

Every person of sound mind, who is not minor, may dispose of his property by Will.
(Section 59 of ISA).

This Section has four explanations, which provide as follows;

• A married woman may dispose by Will any property, which she could alienate
by her own act during her life;

• A person who is deaf/dumb/blind can make a Will, if he/she is able to

understand what he/she is doing; and

• An insane person can make a Will during the period when he is of sound mind;
and

• Any person who is not capable of knowing what he/ she is doing by reason of
illness/intoxication/ any other reason, cannot make a Will.

As may be seen, it is important that a person making the Will and thereby disposing the
property must be of sound mind. In legalistic language, it is stated that a person must
have "Sound Testamentary Capacity". In order to satisfy the criteria of "Sound
Testamentary Capacity", three conditions must exist simultaneously. They are (i) the
Testator must understand that he/ she is giving his property to one or more objects of
his/ her regard (ii) he/she must understand and recollect the extent of his/her property;
and (iii) he/ she must also understand the nature and extent of claims upon him/ her
both of those whom he/ she is including in his/her Will and those whom he/ she is
excluding from the Will.

It is desirable to note here that in terms of Section 61 of ISA, a Will or any part of a Will,
the making of which has been caused by fraud or coercion or by such importunity as
takes away the free agency of the Testator, is void.

Q5. Does ISA provide for any specific manner/ mode for execution of Will?

Section 63 of the ISA provides for the manner in which the Will is to be executed. This
Section provides as follows;

• The Testator shall sign or shall affix his mark to the Will.
Alternatively, it can be signed by some other person in his presence and by his
direction;

• The signature or mark shall be so placed that it shall appear that it was intended
to give effect to the writing as a Will;

(iii) The Will needs to be attested by two or more witnesses, who have seen the Testator
or some other person sign or affix his mark;

(iv) The witnesses should have received from the Testator personal acknowledgment of
his signature or mark; or of the signature of such other person;

• Each witness shall sign the Will in the presence of the Testator; and
• There is no particular form of attestation.
The provisions as listed above in respect of the Will apply also to the Codicil.

It may be noted that under the General Clauses Act, 1897, the expression "sign" with
reference to the person who is unable to write his name includes "mark".

It has also to be noted that though the Testator can execute the Will by affixing his mark,
the attesting witnesses are to sign and do not have the liberty to affix their mark.

Q6. Is it possible to revoke the Will or codicil?

Sections 62 and 70 of ISA deal with revocation of the Will.

It has to be borne in mind that Will of a living person does not come into operation on
execution, but only upon death of a person making the Will. During the lifetime of the
maker of the Will, it is ambulatory in nature. In other words, a property not in existence
at the time of execution of the Will could be a valid subject matter of bequest and a
property listed in the Will may be sold away before the death of the Testator.
It has to be borne in mind that Will is not an instrument of transfer, but an instrument
of devolution.

It is, therefore, always revocable during the lifetime of the maker of the Will. In fact,
severability is one of the criteria of a valid Will.

Section 70 of ISA lays down the circumstances in which the Will or codicil stands
revoked. The circumstances are;

• Marriage; (please see Note below)

• Execution of another Will or Codicil or some writing declaring an intention to
revoke the same which is executed in compliance with the procedure for
execution of the Will;

• Burning or otherwise destroying the same by the Testator or by some person in

his presence and by his direction with the intention of revoking the same.

Note: It may be stated that the provision relating to revocation of Will as a result of
marriage is not applicable to Hindus. In other words, a Will made by Hindu Testator does
not stand revoked by his/ her marriage subsequent to the execution of the Will, by reason of
such marriage.

Q7. Is it necessary to register a Will with the office of Sub Registrar of Assurances
under the Registration Act?

It is necessary to look into the provisions of the Indian Registration Act, 1908, to answer
this question. Section 17 of the said Act enumerates a list of documents which are
compulsorily registerable. The list in Section 17 does not list "Will" as a compulsorily
registrable document. Hence, it follows that there is no legal obligation to register the Will.
In other words, a Will which is not registered is as valid as the registered Will, if it is
otherwise in compliance with the provisions relating to Wills specified in the ISA.

However, it is significant to note that Section 18 of the Registration Act enumerates the
instruments, the registration of which is optional. Sub section (e) of Section 18 specifies
"Will" as an instrument, the registration of which is optional.

The mere fact that a Will is not registered does not make it improbable, much less
impossible that the Will was executed. The Supreme Court has held categorically that
to draw adverse inference against the genuineness of the Will, if the same is not
registered, is not warranted by law[2].

Mere registration does not do away with the requirement of proof of Will in the event of
challenge. The genuineness cannot be presumed. Registration, by itself, cannot explain
the suspicious circumstances surrounding the execution of the Will. Similarly, it is not
permissible to contend that nonregistration is itself a suspicious circumstance.

The question naturally arises whether the maker of the Will derives any advantage by
exercising the option to register the Will pursuant to Section 18 of the Registration Act.
The process of registration establishes that there exists in the Office of the Registrar a
document, being the Will made by certain individual. It is also indicative of the fact that
the maker of the Will admits execution of the Will. Hence, prima facie, the registration
confers on the Will certain degree of authenticity. However, even a registered Will can
be challenged, like unregistered Will, on grounds of undue influence, coercion, fraud or
importunity.

Q8. Is there any provision/ procedure for lodging the Will with the Office of the Sub
Registrar of Assurances without registering the same?

If a person does not wish to register his Will and yet desires to have some nature of
authenticity conferred on the Will, the Registration Act has certain provisions for the
purpose.

Section 42 provides, inter alia, that any Testator or his duly authorised agent can
deposit with the Registrar his Will in a sealed envelope/ cover, with the name of the
Testator and his agent, if any, together with a statement of the nature of the document.

The Registrar is required to transcribe in Register Book No. 5 the superscribed portion
of the envelope/ cover together with time, date, year etc as also the name of the person
identifying the Testator. Thereafter, the Registrar is expected to keep the same in the
fireproof box.

The Testator can withdraw the cover/ envelope so deposited by submitting an

application for the purpose.

On the death of the Testator, an application can be made to the Registrar, for copy of
the Will. The Registrar, after making a copy, is required to redeposit the Will in the
fireproof box.

Q9. Can an executed Will be changed partially or completely after registration?

In the ISA, Section 62 specifically provides 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.
Further, the ISA defines the expression "Codicil" to mean an instrument made in
relation to a Will, and explaining, altering or adding to its dispositions, and shall be
deemed to form part of the Will.

As stated above, the Will becomes operative only after the death of the Testator. It
therefore does not create any right in favour of any person, till the demise of the
Testator. Hence, it is perfectly open to the Testator to discard the Will executed by him
completely and write an entirely new Will and/ or amend the Will in respect of certain
portions of the dispositions made in the original Will.

As a result, even after registration of the Will, the right of the Testator to amend the Will
and/Top StoriestheNews
or revoke Will Updates Columns
is not affected in any Interviews Foreign/International
manner. In other RT
words, even after registration
of the Will, the Testator can amend and/ or revoke the Will.

Q10. If the first Will is registered and subsequently a Codicil or fresh Will is made,
is it obligatory to register the fresh Will?
As discussed, in terms of Section 18 of the Registration Act, the registration of the Will is
optional. Hence, whether it is the first Will or a subsequent Will, the same principle Will
apply irrespective of the fact of registration of the first Will. However, it is necessary to
take into consideration some practical aspects. If the first Will is registered and
subsequent Will is not, it can mislead a person who may, relying on the registered Will,
stake a claim as per the dispositions in that Will. The executor and/ or the legatee will
then have to establish that notwithstanding the registered Will, the same has been
revoked and new Will or Codicil is executed. Hence, prima face, if the first Will is
registered, it is advisable that any subsequent codicil or Will is also registered.

Q11. Does Will attract stamp duty?

Under the Indian Stamp Act, as also certain State Stamp Acts, there is a Schedule listing
instruments which attract stamp duty and the amount of stamp duty payable thereon.
In neither of the enactments, Will is listed as an instrument which attracts stamp duty.
Hence, Wills do not attract any stamp duty.

Q12. Is it permissible to confer a benefit on the witness and/ or Executor under the
Will?

There is no bar under ISA to witness to the Will or Executor of the Will being
beneficiaries under the Will. However, in terms of section 141 of ISA, the Executor
cannot take legacy unless he proves the Will or otherwise manifests an intention to act
as Executor.In this regard Section 67 of Succession Act describes the Effect of gift to
attesting witness.—A Will shall not be deemed to be insufficiently attested by reason of any
benefit thereby given either by way of bequest or by way of appointment to any person
attesting it, or to his or her wife or husband; but the bequest or appointment shall be void
so far as concerns the person so attesting or the wife or husband of such person or any
person claiming under either of them. Explanation.—A legatee under a Will does not lose
his legacy by attesting a codicil which confirms the Will. John Vallamattom and Another v.
Union of India (2003) 6 SCC 611

Q13. What is the nature of properties which can be disposed of under the Will?

Generally speaking, all assets which are owned by the Testator can be given away by
Will. Section 30 of the HSA provides, inter alia, that any Hindu may dispose of by Will or
other testamentary disposition any property which is capable of being so disposed of
by him (or her), in accordance with the provisions of ISA or any other law for the time
being in force and applicable to Hindus.

An explanation to the Section explains that the interest of a male Hindu in a Mitakshra
Coparcenary property shall, notwithstanding anything contained in this Act or in any
other law for the time being in force, be deemed to be property capable of being
disposed of by him or by her It may be added that the ISA, in the definition of the
expression "Will" says that it is the declaration of the intention of the Testator with
respect to his property.

There is no other provision in the ISA which specifically permits or prohibits any
particular property from being disposed of.
In conclusion, broadly speaking, person can dispose of by Will all property which is
owned by him, i.e. the property in respect of which the title has vested in him.

The nature of assets, i.e. immovable or movable is not at all relevant. Hence, immovable
property, movable assets, such as household equipment, vehicles, cash, ornaments,
securities in the form of shares, bonds, units in mutual funds etc, share in HUF property
can be given away in the Will. It is important to note that Will can also cover future
properties, i.e. the properties which may be acquired by the Testator after execution of
the Will. However, it is necessary to take note of certain aspects, which are discussed
below

(i) Immovable property

The expression "immovable property" is generally understood as meaning, a plot of

land/ constructed house/ flat/ apartment etc.. However, it needs to be clarified that
"interest in immovable property" is treated as "immovable property" by the Courts. For
instance, if the Testator has acquired a plot of land on Lease and the term of the Lease
has not expired, the Testator can, bequeath his interest in the unexpired period of the
Lease. Needless to add, such right can be exercised, subject to the terms of the Lease
and provisions of applicable law.

(ii) Jointly owned property

Very often, particularly in the case of inherited immovable property, though the
property is owned jointly by the heirs, the shares of each of the joint owners is not
determined. In such situations, the Testator can give by Will only his undetermined
share in the said property. The legatee/s in the Will then step into the shoes of the
Testator, after the death of the Testator and become co-owner(s) of the said property
along with other owners.

(iii) Flat in housing co-operative society or Apartment Owners Association

Generally speaking, the housing cooperative societies or associations of apartment

owners require their members to nominate another person for effecting transfer of the
interest after their death.

The Supreme Court, while determining a case which had arisen under the West Bengal
Co-Operative Societies Act, 1983, observed, inter alia, that having perused the aforesaid
provisions, there can be no doubt, that where a member of a co-operative society nominates
a person in consonance with the provisions of the Rules, on the death of such member, the
Co-operative society is mandated to transfer the share or all the interest of such member in
the name of the nominee "…………………….. that would have no relevance to the issue of title
between inheritors or successors to the property of the deceased"[3]. The Supreme Court
has, therefore, said that mere nominations does not make the nominee owner of the
right, title and interest of the deceased member in the shares and flat. The , nomination
is not akin to the gift by a Will. Hence, the nominee holds the interest of the deceased
member in the shares and flat, not as owner but as trustee for the heirs of the deceased.
In other words, the heirs of the deceased can stake their claim to the flat in consonance
with the law.
In view of the above legal position, if the Testator desires to gift the flat to the nominee, it is
necessary to make a bequest in the Will in favour of the nominee for conferring on him the
title to the shares held and the flat allotted.

Similarly, it is perfectly open to the Testator to bequeath the flat in favour of any person
other than the nominee.

(iv) Investments such as shares, bonds held physically or in Demat Accounts

These can be bequeathed by the Testator, if the same are held by the Testator in his
name. If however, the same are held jointly with any other person, as is the case very
often, the Testator can bequeath his interest in the shares/ bonds and other securities.

Even if the Testator intends to bequeath the shares/ bonds/ securities to the joint holder,
it is advisable to make a specific bequest of the interest of the Testator.

A question is often raised in respect of bank accounts/ investments which are held
jointly with either / or survivor mandate. It is generally presumed that the cases where
there is joint ownership with either/ or survivor mandate, the surviving holder Will be
the owner of the moneys in the account and/ or investments. However, it is debatable
whether either/ or mandate confers ownership of the interest of the deceased holder on
the surviving holder in the absence of a specific gift in favour of the joint holder. It is,
therefore, advisable to make a specific bequest of the interest in the jointly held bank
accounts and/ or investments either in favour of the joint holder or such other person
as may be chosen by the Testator.

It may be stated that in cases where either/ or mandate is given, bank can get a good
discharge if it pays the amount to the surviving account holder. However, such surviving
account holder does not necessarily become the owner of the moneys. The surviving
account holder holds the amount in trust for the heirs of the deceased account holder.

Q14. What is the procedure for settlement of claims in respect of deceased

depositors?

In this connection attention is invited to an extract from RBI Master Circular No.
RBI/2015-16/5 DCBR.BPD.(PCB). MC.No: 6 /13.01.000/2015-16 dated July 1, 2015
addressed to The Chief Executive Officers of All Primary (Urban) Co-operative Banks.

In the case of deposit accounts where the depositor had utilized the nomination facility
and made a valid nomination or where the account was opened with the survivorship
clause ("either or survivor", or "anyone or survivor", or "former or survivor" or "latter
or survivor"), the payment of the balance in the deposit account to the
survivor(s)/nominee of a deceased deposit account holder represents a valid discharge
of the bank's liability provided : (a) the bank has exercised due care and caution in
establishing the identity of the survivor(s) / nominee and the fact of death of the
account holder, through appropriate documentary evidence; 22 (b) there is no order
from the competent court restraining the bank from making the payment from the
account of the deceased; and (c) it has been made clear to the survivor(s) / nominee that
he would be receiving the payment from the bank as a trustee of the legal heirs of the
deceased depositor, i.e., such payment to him shall not affect the right or claim which
any person may have against the survivor(s) / nominee to whom the payment is made.

Q15. What is Probate?

The expression "Probate" is defined to mean the copy of a Will certified under the seal
of a Court of competent jurisdiction with a grant of administration of the estate of the
Testator.

Which court has the power to grant Probate?

Jurisdiction of Courts for granting Probate/ Letters of Administration.

Section 264 confers jurisdiction on District Courts for granting and revoking Letters of
Administration in all cases within the District. This provision needs to be read with
Sections 265 and 270 of ISA. Section 265 confers power upon the High Court to appoint
such judicial officers within any districts as it thinks fit to act for District Judge as
delegates for the purpose of granting Probates or Letters of Administration in on
contentious cases within such local limits as it may prescribe.

It has to be noted that this power is given only to those High Courts which are
established by Royal Charter. The other High Courts need previous sanction of the State
Government for exercise of this power.

In terms of Section 270, the District Judge can grant Probate of Will or Letters of
Administration, based on the duly verified application, to the effect that the Testator or
intestate had, at the time of demise, fixed place of abode or any property, movable or
immovable within the jurisdiction of the Judge.

In Calcutta, Madras and Bombay, the High Courts have Original Jurisdiction to try and
dispose of cases under the Testamentary and Intestate jurisdiction as provided for
under the respective High Court Original Side Rules.

It may be noted stated that Applications for Probate and Letters of Administration
attract court fees.

Q16. Is it obligatory to obtain Probate?

There is no statutory obligation to obtain Probate/ Letters of Administration. However,

if an immovable property is involved, and the legatee seeks to transfer the property the
office of the Sub Registrar of Assurances may demand Probate/ Letters of
Administration. Similarly, banks, very often, insist on production of Probated Will.
Hence, it is advisable to obtain Probate.

However, the provisions of Section 213 are relevant. It provides, inter alia, that no
right as executor or legatee can be established in any court, unless a court of
competent jurisdiction in India has granted Probate of the Will under which the
right is claimed or has granted Letters of Administration with the Will annexed…..

This provision is applicable to all Wills/ Codicils made within the local limits of the
Ordinary Original Civil Jurisdiction of the Bombay High Court and the Wills/ Codicils
made outside the aforesaid jurisdiction of the Bombay High Court in so far as the same
relate to immovable property situate within those territories.

It is important to note that in terms of Section 211, the property of the deceased vests in
the executor on his acceptance of the office and the executor derives the tittle from the
Will and becomes representative of the deceased. It is not necessary for the executor to
obtain Probate for acquiring title. In the event a dispute relating to the property of the
Testator arises, the executor can represent the estate of the Testator even before grant
of Probate. However, no decree can be passed before Probate is obtained[4].

Q17. Is there any prescribed format in which the Court issues the Probate?

Yes. The ISA in Schedule VI sets out the Form of Probate in which the Court is required
to issue Probate

Q18. Who can apply for Probate?

In terms of Section 222 of the ISA, Probate shall be granted only to an executor
appointed by the Will. The appointment may be express or by implication. The Probate
cannot be granted to a minor or person of unsound mind.

If the executor renounces or fails to accept executorship within the prescribed time,
Court may grant Letters of Administration to the person entitled for it.

Q19. What is the effect of grant of Probate?

Once the Probate is granted, it establishes the Will from the death of the Testator and
renders valid, all action of the executor during the interim period, i.e. the time of the
death of the Testator and the grant of Probate[5].

Probate is conclusive evidence of the testamentary capacity of the Testator and due
execution and validity of the Will. The finding of the Probate court as to the due
execution of the Will is conclusive.

The grant of Probate vests all the property in the person in whose favour the Probate is
granted.

Q20. What is the role and function of the Court's having Testamentary
jurisdiction?

Upon filing of the Petition for Probate the Court Registry scrutinizes the Petition, directs
the Petitioner to deposit Court fees, deposit Original Will; if Consent Affidavits are not
filed legal heirs of the deceased then issue Citations to legal heirs as well as the Citations
to be affixed at the conspicuous place on the Notice Board of High Court and Office of
the Collector; Affidavits proving service of Citations; if Caveats are not filed; further
Scrutiny is done and grant is issued;

Q21. What is Letters of Administration?

This expression is not defined in the ISA. However, the expression "Administrator" is
defined to mean, a person appointed by competent authority to administer the estate of
the deceased person when there is no executor..

Q22. When is Letters of Administration issued by the Court?

Section 218 provides, inter alia, that when a Hindu person dies intestate, administration
of his estate may be granted to any person who, according to the rules for the
distribution of the estate applicable in the case of such deceased, would be entitled to
the whole or any part of such deceased persons' estate.

If several such persons apply for such administration, the court has the discretion to
grant the same to any one or more of them.

It may be noted that the definition of the expression "administrator" provides that
administrator may be appointed when there is no executor.

The above definition suggests that even if a person has made a Will, but not appointed
an executor, administrator can be appointed.

Thus, while section 218 speaks of grant of Letter of Administration to the heir(s) of a
person who dies intestate, by reason of the definition referred to above, even if a person
has made a Will, but not appointed an executor, the administrator can be appointed.

To sum up, Letters of Administration of an estate can be issued under two

circumstances, namely, (i) when a Hindu person dies intestate; and (ii) when a person
makes a Will but does not appoint an executor.

Q23. What is the effect of grant of Letters of Administration?

Letters of Administration grants to the Administrator all the rights belonging to the
intestate as effectually as if the administration had been granted at the moment of
his/her death. In other words, whenever the administration is granted, it relates back to
the moment of death of the person who died intestate.

There are innumerable provisions in the ISA in respect of duties and powers of persons
in whose favour the Probate/Letters of Administration are granted, as also the various
situations that may arise in the course of performance of their duties. These provisions
are not discussed as the same are not considered relevant for the purposes of this note.

Q24. What is the procedure for obtaining Probate/Letters of Administration?

The Bombay High Court (Original Side Rules? 1980 as amended from time to time set
out the procedure for obtaining Probate/ Letters of Administration.

Q25. What are the consequences if Will is not executed?

If the Will is not executed, on occurrences of the death, the person is considered as
having died intestate. It has to be noted that if a person makes a Will in respect of part
of his property only, then, he is deemed to have died intestate in respect of all the
property of which he has not made a testamentary disposition which is capable of
taking effect. Part V of the ISA deals with intestate successions.

However, the same does not apply, inter alia, to the property of any Hindu. The law
relating to intestate succession in respect of Hindus is laid down in HSA which is
discussed below.

In terms of Section 8 of HSA, the property of a male Hindu dying intestate shall devolve
according to provisions of Chapter II, dealing with the intestate succession.

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives
specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the
deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

As stated above, the Schedule to HSA lays down a list of heirs who become entitled to
the property of a male Hindu dying intestate. Section 9 of the HSA provides, inter alia,
that those in class I shall take simultaneously and to the exclusion of all other heirs. As
regards heirs in class II are concerned, they would become entitled only if there is no
heir in class I. Between themselves, they become entitled in the orders of the entries. In
other words, those in entry 1 will get priority over those in entry 2 and so on.

Q26. Are there any rules for division of the property among heirs in Class I and
Class II?

Sections 10 and 11 of the HSA specify the rules for division of the property among the
heirs in class I and II respectively.

Section 10 of HSA provides that the property of an intestate shall be divided among the
heirs in Class I of the Schedule in accordance with the following Rules.

10. Distribution of property among heirs in class I of the Schedule.—The property of an

intestate shall be divided among the heirs in class I of the Schedule in accordance with the
following rules:— Rule 1.— The intestate's widow, or if there are more widows than one, all
the widows together, shall take one share. Rule 2.— The surviving sons and daughters and
the mother of the intestate shall each take one share. Rule 3.— The heirs in the branch of
each pre-deceased son or each pre-deceased daughter of the intestate shall take between
them one share. Rule 4.— The distribution of the share referred to in Rule 3—

(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow
(or widows together) and the surviving sons and daughters gets equal portions; and the
branch of his predeceased sons gets the same portion;

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the
surviving sons and daughters get equal portions.
Further, section 11 of HSA states, inter alia, that the property of an intestate shall be
divided between the heirs specified in any one entry in Class II of the Schedule so that
they share equally.

Q27. What are the provisions in HSA in the event of female Hindu dying intestate?

According to Section 15 of HSA, the property of female Hindu dying intestate, shall
devolve as per the rules set out in Section 16,

• Firstly, upon, sons, daughters (including children of predeceased son or

daughter) and husband;

• Secondly, upon heirs of husband;

• Thirdly upon, mother and father;
• Fourthly upon, heirs of father; and
• Last upon, heirs of mother.
Q28. Are there any specific rules relating to distribution amongst those who are
entitled to the estate of the female Hindu dying intestate?

Section 16 of HSA provides as follows;

The order of succession among the heirs referred to in section 15 shall be, and the
distribution of the intestate's property among those heirs shall take place according to
the following rules, namely: -

Rule 1: Among the heirs specified in sub-section (1) of section 15, those in one entry
shall be preferred to those in any succeeding entry and those including in the same
entry shall take simultaneously

Rule 2: If any son or daughter of the intestate had pre-deceased the intestate leaving his
or her own children alive at the time of the intestate's death, the children of such son or
daughter shall take between them the share which such son or daughter would have
taken if living at the intestate's death.

Rule 3: The devolution of the property of the intestate on the heirs referred to in clauses
(b), (d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same
order and according to the same rules as would have applied if the property had been
the father's or the mother's or the husband's as the case may be, and such person had
died intestate in respect thereof immediately after the intestate's death

The heirs specified in (b)(d) and (e) of Sub section (1) and in Sub section (2) of Section
15 shall be in the same order and according to same rules as would have applied if the
property would have been that of father or mother or husband and such person would
have died intestate in respect thereof immediately after the death of intestate.
Q29. Can 'Will' be an instrument of tax planning? If so, how?

The author is not familiar with the tax laws to comment on this issue. However, an
extract from "Halsbury's Laws of India" – Second Edition – Vol 38 on 'Wills and
Succession' is given below.

"In compiling the total income of a previous year of any person, any income received by an
individual as a member of HUF out of the income of the family or its estate, other than
income which he converts from separate property into family property will not be included
in his total income. Therefore, a bequest under a Will to HUF of which a person is a
member, instead of a bequest to a person in his individual capacity has the effect of creating
a new taxing entity, which enjoys an exemption limit applicable to it under the finance
legislation from time to time".

Q30. What is the relationship between Hindu Succession Act and Indian Succession
Act?

ISA is the law which deals with intestate succession and also testamentary succession.
The law relating to Wills is part of the testamentary succession and it applies to Hindus. It
may be noted that the provisions relating to intestate succession in the ISA do not apply to
Hindu, Muhammadan, Buddhist, Sikh or Jaina. The provisions of HSA which are attracted
in the event of intestacy of Hindu male or female have been already discussed.

A list of precautions to be taken while preparing a Will is given in Annexure I.

Annexure I

Precautions to be observed in preparing the Will

• To the extent possible, the Will should be typed and printed on ledger paper or
on A-4 white paper.

• If the Will is handwritten, it should be ensured that it is written in clear, legible

handwriting, without any overwriting, cancellations etc.

• It should be written in the language with which the Testator is fully familiar and
understands.

• There should be complete clarity with respect to the proposed distribution of

assets.

• It is advisable to ensure that none of the legatees are witnesses though there is
no such prohibition in law.

• The Testator should initial or put his full signature on each page of Will.
• The Will should clearly state the date on which it is executed.
 • It should avoid any extraneous remarks or comments which can lead to
controversy at a later date.

• The assets, particularly immovable properties/assets should be clearly

described fully. It is customary to give full description of the immovable assets in a
separate schedule, which is part of the Will.

• The list giving particulars of Bank Accounts; Demat Accounts with correct
numbers and branch addresses are always advantageous to the Executor of the
Will whilst filing Petition for Probate;

• It should be unambiguously stated whether the Will is the first Will or by way of
an amendment or in supersession of an earlier Will. A paragraph as under may
also be part of the Will :

"I have revoked all my previous Wills and testamentary dispositions, if any, and declare
this to be my last Will and Testament which I am making of my own free will and
volition and while being in good state of health, mental as well as physical".

• It is advisable that the witnesses chosen for attestation of the Will are in
younger age group.

• It is advisable to annex a certificate from a qualified registered medical

practitioner to the effect that the Testator was of was of sound and disposing mind,
memory and understanding and in good state of health, mental as well as physical
at the time of making the Will.

• There is a tendency to annex list of movable assets to the Will. However, it has to
be borne in mind that the movable assets may be sold and/or undergo changes
after preparation of the Will which can possibly result in confusion or conflict
Hence, it is advisable to enlist only those movable assets which are not likely to
undergo any changes. For instances, gold/silver/ diamonds etc. The other movable
assets can be described in general terms such as furniture, gadgets, kitchen
equipment etc.

• If one proposes to make a bequest of interest in any property absolutely to any

person, but also give a direction regarding employment or application of such
fund, the legatee shall be entitled to receive the fund as if the Will did not contain
any such direction.

• If any of the heirs is to be excluded from legacy for any reason, it should be
stated clearly, preferably recording briefly the reasons for such exclusion.

(xvii) If a legacy is to be given to any person who is not an heir, the reasons for grant of
such legacy should be recorded briefly.
Author: A.G.Karkhanis Advocate, High Court (ag_karkhanis@yahoo.co.in). Views
are personal.

[1] Sreedevi vs Radhakrishna Nair 2018 (3) Kerala Law Journal 196.

[2] Ishwardeo Narain Singh vs Sm. Kamta Devi And Ors AIR 1954 SC 280.

[3] Indrani Wahi vs Registrar of Co Operative Societies an Others

[4] Ajit Kumar Hazza vs Rabindra Nath Roy (AIR 1980 Cal 117).

[5] Smt. Kiran Diwania vs Financial Commissioner, Delhi, 2013 (138) DRJ 198.
Tags:

Will Indian Succession Act Codicil Testator General Clauses Act Execution

Registration Act Mitakshra Coparcenary

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