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W I L L: (Testament) Ca Ajit C. Shah

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Suvrat Shah
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23 views4 pages

W I L L: (Testament) Ca Ajit C. Shah

Uploaded by

Suvrat Shah
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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W I L L

( T E S T A M E N T)
CA AJIT C. SHAH
B.COM., LL.B.,F.C.A.

What is WILL? The most important word in our life.


Somebody says

“ Where there is a will, there is way.

Where there is no will, there is a lawyer”

Object of preparing a WILL is to create an apt awareness


amongst general public. What are the advantages of making
a WILL and what are the disadvantages of not making a
WILL, we will discuss. There are many hurdles and hassles
in not making a WILL, at the time of transferring the estate
of a deceased person. There may be a dispute between the
legal heirs on the death of a person. Therefore one should
never underestimate the importance of making a WILL at
any time during one’s life time.
WILL makes not only wealth transfer an easy, but also helps
in SUCCESSION and TAX PLANNING. It is not difficult at all,
its very simple and easy to draft a WILL.

Indian Succession Act, 1925 governs the preparation of


WILLs. This Act does not apply in its entirety to all Indians.
Most of its provisions do not apply to Muslims and some of
them are not applicable to even to Hindus, Buddhists, Sikhs,
Jains, or Christians. It will apply all other communities in its
entirety.

The person who makes the WILL is called TESTATOR and he


persons who get the benefits under the WILL are called
LEGATEES. If the properties of the deceased distributed
according to the WILL prepared by him during his life time, it
is called TESTAMENTARY SUCCESSION, while if such
distribution of properties without WILL, it is called,
INTESTATE SUCCESSION. Both the type of successions are
governed by the Indian Succession Act 1925.

In our country, if you will advice someone to prepare WILL,


his immediate reaction will be Do you mean I will die? No
body knows when, who will die, it is advisable to prepare a
WILL. A WILL helps you pick and choose your heirs and in
what proportion of wealth and assets. It is the belief of some
people that after my death all the assets are inherited by
wife, which is not correct.

THE TESTATOR( One who draft the WILL)

He is govern by the Law of the place where the Immovable


Properties located, and in case of Movable Properties by the
Law of Domicile.
( A person’s domicile is that in which he either has or is
deemed to have his PARMANENT HOME)

As regards succession of immovable properties whatever


may be the domicile or nationality of the person, the
succession thereto, the right of disposal of the property by
WILL, capacity to make a WILL, all these formalities would
be govern by where the property is situated.
As regards movables, all the above formalities would be
govern by the law of domicile. Section 19 of the Indian
Succession Act, 1925 however states that in absence of
proof of domicile elsewhere, the moveable property in India
would be governed by the law in India.

LAWS APPLICABLE TO WILL:

There are number of different enactments making


corrections/deletions/additions in relation to WILL from 1865
to 1956:

Indian Succession Act 1865: This was applicable ONLY to


Anglo Indian and English people; Hindus, Jains, Muslims
were excluded.

The Hindu Will Act 1870: This was applicable ONLY to


Hindus, Jains, Sikh, Budhist. It provided only rules and
regulations regarding WILLs.

The Probate and Administration Act 1881: This Act provided


ONLY the manner for getting the probate.

Registration Act 1908: Section 18 of this Act clarified that


there is no need to get the WILL registered. Also it made
provisions for deposit of WILLs.
Thus registration and deposit of WILLs are not mandatory
but are Optional under the provision of this Act.
Indian Succession Act 1925: All provisions enactments
relating to WILLs abolished and subject to certain exceptions
(Hindu, Jains, Sikh, Budhist, Parsi, Christan ) made
applicable to all Indians.
This Act deals with the succession both of intestate and
testamentary

Bombay Public Trust Act 1950: If the benefits under the


WILL are made available to Religious or Charitable Trust, the
copy of the WILL is required to be registered with Charity
Commissioner. This Act is applicable to Maharashtra and
Gujarat.

The Hindu Succession Act 1956: This Act has come in to


operation with effect from 17 th
June 1956. Under the
provisions of this Act, for the first time a male Hindu of HUF
has been granted the right to WILL away his undivided share
in the family property and the females also have been
granted the full ownership of all the properties however
acquired by them either inherited or under a WILL or even
their Streedhan.(

If NO WILL :
• Hindu Succession Act, 1956 will apply to Hindus, Jains,
Budhists and Shikhs
• Indian Succession Act 1925 will apply to Parsis,
Christians and Jews.
• In case of Muslims, the succession is governed by their
religious inheritance laws, which very across different
sects.
• Laws governing the WILLs are different from country to
country.

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