A WILL is a legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death. In case, an individual dies intestate (when no will is made), the laws of succession comes into existence.
WILL under Indian Succession Act, 1925
A will made by Hindu, Jain, Buddhist, or Sikh is governed by the provisions of the Indian Succession Act, 1925.
Important Provisions related to WILL under the Act
- A person who can make a will
- Every person who is of sound mind and is not a minor can make a will.
- A person who is ordinarily insane may make a will during an interval in which he is of sound mind.
- A deaf, dumb, or blind person can also make a will.
- No person can make a will while he is in such a state of mind whether arising from intoxication or illness or any other reason, that he does not know what he is going to do.
- Execution of a WILL
- He shall sign or fix his mark to the will and it shall be signed by some other person in his presence.
- The signature should be clear and placed in such a place that intended to give effect to the writing of a will.
- It shall be attested by two or more witnesses.
- The beneficiary of a WILL
Any person capable of holding property can be devisee under a will and therefore minor, lunatic, a corporation, a Hindu deity or any other juristic person can be a devisee.
- Loss of a WILL
If a will is lost, it will be presumed to be revoked. If the will was seen with the Testator but could not be found after the death of the testator, it will be presumed that the same has been revoked by the testator by destroying the same.
WILL UNDER MUSLIM LAW:
A Muslim is not allowed to bequeath more than a third part of his property with a view to not affect the shares of those who are enjoyed by the Koran to inherit the property of the deceased.
The will of Muslim is governed by Muslim Law. The provisions of the testamentary succession laid down in the Succession Act,1925 affect Muslim Wills.
Important provisions related to WILL under Muslim Law:
- A person who can make a will:
- Every person, who is of sound mind and of the age of majority, which is regulated by the Indian Majority Act, can make a will.
- Under Shia Law, a will made by a person who has taken poison or has wounded himself with a view to committing suicide is invalid. But a will made by a person, who commits suicide, is valid.
- A will made by a person under coercion, undue influence or fraud is invalid. Also, the court will scrutinize the will of pardanasheen lady very carefully before admitting it.
- The subject matter of Will:
Any property immovable, corporeal or incorporeal which is capable of being transferred, is the subject matter of the bequest. The bequest may consist of the corpus. A testator may give a corpus to one person and usufruct to another.
The testamentary power of a Muslim is limited to bequeathable one-third means of the estate of the testator which is left after the payment of his funeral expenses, debts, and other charges.
- Construction of Will:
A ‘Muslim Will’ is to be constructed in accordance with the rules of construction laid down in the Muslim Law, the language used by the tester, and the circumstances.
Its common rule of construction is that unless a different intention appears, a will speaks from the death of the testator and the bequest, contained in it accordingly.
- Revocation of the Will:
A testator may revoke his will or any part of it at any time, either expressly or by implication. Similarly, a testator is also free to make any additions to his will. But if the addition to the subject of the bequest is such that the subject of the bequest cannot be delivered with addition, then the bequest stands revoked.
~ Adv Hemal Pandya Raval