Types of Will in India: Understanding the Indian Succession Act

As an Indian, it is essential to understand the legal implications of creating a will. A will is a legal document that outlines how your assets will be distributed after your death. It is a crucial tool for estate planning and ensuring that your loved ones are taken care of. However, many people are not aware of the different types of will in India and the legalities surrounding them. In this article, we will discuss the types of will in India in India and the Indian Succession Act.

Importance of creating a will in family law

Creating a will is one of the most critical steps in estate planning. It is a legal document that ensures that your assets are distributed according to your wishes. A will helps to avoid confusion and disputes among family members and beneficiaries. In case of no will, your assets will be distributed according to the Indian Succession Act, which may not align with your wishes. Hence, creating a will is essential to ensure that your loved ones are taken care of after your death.

What are the various kinds of will under Indian Succession Act?

In India, there are primarily three types of will in India: privileged, unprivileged, and conditional wills. Let us discuss each of them in detail.

Privileged Wills

A privileged will is a will that is created by a soldier or an airman who is on active duty or engaged in a war-like situation. It can also be created by a mariner at sea. A privileged will can be created by any person who meets these criteria, irrespective of their age or mental condition. Advantages of a privileged will include that it can be created even without the signature of two witnesses. Also, a privileged will does not require registration or stamp duty.

Unprivileged Wills

An unprivileged will is a will that is not created under the conditions of a privileged will. It is created by a person who is not engaged in active duty or a war-like situation. An unprivileged will can be created by any person who is of sound mind and has attained the age of majority (18 years). Limitations of an unprivileged will include that it requires the signature of two witnesses. Also, an unprivileged will needs to be registered or stamped to be valid.

Conditional Wills

A conditional will is a will that is created under specific conditions. For example, a testator may create a will that will come into effect only if they die before a particular date or only if a particular person survives them. A conditional will can be created by any person who is of sound mind and has attained the age of majority. Advantages of a conditional will include that it can be used to provide for future events or circumstances. However, creating a conditional will requires careful consideration of the conditions and their feasibility.

Validity of wills under Indian Law

To ensure that a will is valid, it must meet certain legal requirements. These requirements include that the testator must be of sound mind, the will must be in writing, and it must be signed by the testator and two witnesses. The Indian Succession Act provides the legal framework for the creation and execution of wills in India.

Differences between privileged and unprivileged wills

The Indian Succession Act, 1925, recognizes two types of will in India, privileged and unprivileged. A privileged will is a will made by a soldier or an airman, whether in actual service or not, or by a mariner at sea. A privileged will can be made even by a person who is not of sound mind, provided it is made during a time of war or in anticipation of an immediate danger of death. On the other hand, an unprivileged will is a will that is not a privileged will. The main difference between privileged and unprivileged will, is that a privileged will can be made by a person who is not of sound mind and without complying with the formalities required for an unprivileged will. However, an unprivileged will must be executed by a person who is of sound mind and capable of making a will, and it must be executed in accordance with the formalities laid down in the Indian Succession Act.

Advantages and disadvantages of each type of will:

One of the advantages of a privileged will is that it can be made by a person who is not of sound mind. This means that soldiers, airmen, and mariners who are in danger or in a war zone can make a will without having to comply with the formalities required for an unprivileged will. However, the disadvantage of a privileged will is that it can only be made by a person in a specific set of circumstances. On the other hand, the advantage of an unprivileged will is that it can be made by any person who is of sound mind and capable of making a will. This means that any person can make a will without having to fulfil any specific conditions. However, the disadvantage of an unprivileged will is that it must be executed in accordance with the formalities laid down in the Indian Succession Act.

Can a person execute two wills?

Under Indian law of wills in India, a person can execute two wills. However, the second will must be made with the intention of revoking the first will, and it must be executed in accordance with the formalities laid down in the Indian Succession Act. If both wills are valid, the last will revokes the earlier one. One of the advantages of executing two wills is that a person can make different provisions for different properties or for different beneficiaries. For example, a person may make one will for movable property and another will for immovable property. However, the disadvantage of executing two wills is that it can create confusion and disputes among the beneficiaries.

Why women need to have their own Succession Plan

The Indian Succession Act 1925 has laid down the laws regarding inheritance and succession in India. However, when it comes to succession planning, women are often overlooked. In India, women are often treated unfairly when it comes to inheritance and succession. Therefore, it is essential for women to have their own succession plan in place to ensure that their assets are distributed as per their wishes after their demise.

Challenges faced by women in inheriting property

1. Gender Bias: Women face gender bias when it comes to inheriting property. Even today, women are considered as secondary heirs, and their share of the property is often less than that of men.
2. Lack of Awareness: Many women are not aware of their rights when it comes to inheriting property. They are often not informed about the laws regarding inheritance and succession.
3. Family Pressure: Women are often pressurized by their families to give up their share of the property in favour of male heirs.

Importance of having a succession plan for women

Having a succession plan is crucial for women to ensure that their assets are distributed as per their wishes after their demise. The importance of having a succession plan for women is as follows:

1. Control over Assets: A succession plan gives women control over their assets and ensures that their assets are distributed as per their wishes.
2. Avoids Family Disputes: A succession plan helps to avoid family disputes and ensures that the distribution of assets is done in a fair and equitable manner.
3. Protects Children's Interests: A succession plan ensures that the interests of children are protected, and they receive their share of the assets.
4. Provides Financial Security: A succession plan provides financial security to the family and ensures that they are taken care of even after the demise of the woman.

Details of the Indian Succession Act 1925

The Indian Succession Act 1925 lays down the laws regarding inheritance and succession in India. It is a comprehensive law that covers various aspects of succession, including the creation of wills, the distribution of property, and the appointment of executors.

Key provisions of the Indian Succession Act 1925

The key provisions of the Indian Succession Act 1925 are as follows:

1. Testamentary Succession: The Act provides for testamentary succession, which means that a person can create a will and distribute his/her property as per his/her wishes.
2. Intestate Succession: If a person dies without leaving a will, the Act provides for intestate succession, which means that the property will be distributed among the legal heirs as per the rules laid down in the Act.
3. Executor: The Act allows a person to appoint an executor who will be responsible for executing the will and distributing the assets.
4. Probate: The Act provides for probate, which is a legal process that confirms the validity of the will.
5. Revocation of Will: The Act provides for the revocation of a will, which means that a person can cancel or revoke his/her will at any time.

Common errors that can invalidate a Will

Creating a will is a crucial step in ensuring that your assets are distributed as per your wishes after your demise. However, it is important to ensure that the will is free from any errors, or it might be deemed invalid in court. To help you avoid common errors that can make your will invalid, we have compiled a list of six mistakes that you must avoid.

1. Not Attested Properly: A will need to be attested by two witnesses who must sign it in the presence of each other and the testator (the person creating the will). If the will is not attested properly, it can be deemed invalid.
2. Not Dated: A will must have a clear date of creation. If the will is not dated or has an ambiguous date, it can lead to disputes and make the will invalid.
3. Not Clear and Specific: A will must be clear and specific in terms of the distribution of assets. If the will is unclear or ambiguous, it can lead to disputes and litigation.
4. Not Including All Assets: A will must include all assets of the testator, including both movable and immovable assets. If any asset is left out, it can lead to disputes and make the will invalid.
5. Not Updating the Will: A will must be updated regularly to reflect any changes in the testator's assets or wishes. If the will is not updated, it can become outdated and make the will invalid.
6. Testator Not in Sound Mind: A will is only valid if the testator is of sound mind and capable of making rational decisions. If the testator is not in a sound state of mind, the will can be challenged and deemed invalid.

By avoiding these common errors, you can ensure that your will is valid, and your assets are distributed as per your wishes.

The challenging process of establishing the validity of a will Indian law court

When a will is contested in court, it can be a long and arduous process. The Supreme Court has laid down guidelines to prove a will in court, especially when there are suspicious circumstances surrounding the will. These guidelines can help you understand the legal process better and ensure that your will is upheld in court.

1. Burden of Proof: The burden of proving the will lies with the person who asserts its validity. They must prove that the testator was of sound mind while making the will and that it was made without any coercion or undue influence.
2. Suspicious Circumstances: If there are any suspicious circumstances surrounding the creation of the will, such as the testator's mental capacity, influence by others, or irregularities in the execution of the will, the court will scrutinize it closely.
3. Evidence: To prove a will, the evidence must be clear, consistent, and cogent. The evidence must also support the authenticity of the will and the testator's intention to create it.
4. Expert Opinion: In cases where the testator's mental capacity is in question, expert opinion from a medical practitioner may be required to prove their soundness of mind.
5. Probate: Probate is a legal process to establish the validity of a will. It involves submitting the will to the court, which then verifies its authenticity and approves its execution.
6. Appeals: If a will is contested and a decision is made, either party may appeal the decision. The appeals process can be time-consuming and expensive.

By understanding these guidelines, you can ensure that your will is created in a manner that is free from any suspicious circumstances and that it is executed as per your wishes.

Secure your legacy with NoBroker's expert services in India

The Indian Succession Act lays down the laws and regulations surrounding wills in India. Creating a will is crucial for every individual to ensure that their assets are distributed as per their wishes after their demise. There are various types of will in India in India that one can choose from, depending on their specific needs and requirements.

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FAQ's

A: A privileged will is one that is made by a soldier, an airman, or a mariner at sea, and it does not need to comply with the formalities required for an unprivileged will under the Indian Succession Act, 1925. On the other hand, an unprivileged will is one that is made by any other person and must comply with the formalities prescribed under the Act, such as it must be in writing, signed by the testator, and attested by two witnesses.

A: Yes, a person can make two wills in India. However, both wills must be executed separately and should not contain conflicting provisions. It is advisable to consult a legal expert while making two wills to ensure that there is no conflict between them.

A: No, it is not necessary to register a will in India. However, it is advisable to do so as it provides additional evidence of the existence of the will and its contents. Registration of a will can be done with the Registrar or Sub-Registrar of Assurances.

A: Yes, a person can change their will after it has been made in India. They can do so by executing a new will or by making a codicil to the existing will. A codicil is a document that amends, modifies, or adds to the provisions of the original will.

A: A witness plays a crucial role in the making of a will in India. The witness must sign the will in the presence of the testator and each other, and they must attest that the testator signed the will in their presence. The witness should also ensure that the testator was of sound mind and understood the nature and effect of the will at the time of making it.

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