The Legal Framework of Wills and Codicils under the Indian Succession Act (ISA)
The Indian Succession Act (ISA) of 1925 outlines the legal framework governing wills, codicils, and the administration of a deceased person’s estate.
It provides clear provisions for making a will, modifying it, and the post-death process of probate and letters of administration.
A will, as per Section 2(h) of the ISA, is a “legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.”
This article delves into the essentials of wills, codicils, and related provisions, as well as the probate and administration process.
Understanding Wills and Codicils
A Will is a document in which a person (the testator) outlines how their assets and property should be distributed upon their death. A key feature of a will is its revocability; the testator can amend or revoke the will during their lifetime, as it only takes effect after their death.
Section 59 of the ISA elaborates that any person of sound mind who is not a minor can make a will. However, a will is not an instrument of transfer, but one of devolution—meaning, it does not transfer property during the testator’s lifetime but ensures the intended distribution of the property after death.
A Codicil is an instrument that amends, adds, or explains the dispositions in a will. It can only be created by the same person who made the original will, and it forms part of the will upon execution.
Codicil as defined in Section 2(b) of the ISA means “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.”
Essential Characteristics of a Will
The essential characteristics of a valid will are as follows:
1. Legal Declaration: The testator must make a clear declaration regarding their property.
2. Property Disposition: The declaration must concern the property of the testator.
3. Effect After Death: The will should state that it will take effect only after the testator’s death and be revocable during the testator’s lifetime.
Execution of a Will: Section 63 of the ISA
Section 63 of the ISA lays down the manner in which a will must be executed to be valid:
1. Signature or Mark: The testator must sign the will or affix their mark to it. If the testator cannot sign, another person can sign on their behalf in their presence and under their direction.
2. Attestation: The will must be attested by at least two witnesses. The witnesses must either see the testator sign the will or see the testator acknowledge the signature or mark of another person.
3. Witness Acknowledgment: The witnesses must receive personal acknowledgment from the testator that the signature or mark belongs to them or the person who signed on their behalf.
4. Witness Presence: The witnesses must sign the will in the presence of the testator. These execution formalities are also applicable to codicils, as they form part of the original will.
Revocability of Wills
A will is inherently revocable during the lifetime of the testator. This is a core principle, as the testator can change their mind about how their property will be distributed. A person can revoke a will by creating a new will or by explicitly destroying the original will.
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Registration of Wills
Under Section 17 of the Registration Act, a will is not a compulsorily registrable document.
Section 18 (e) of the same Act makes it clear that the registration of a will is optional. This means that a Will can be valid even without being registered, as long as it meets the legal requirements of the ISA.
However, while registration is not mandatory, it can provide additional evidence of the authenticity of the will in cases of disputes.
Moreover, even if the will is registered, the testator retains the right to amend or revoke the will, as registration does not diminish their power to change their testamentary intentions.
Sometimes a question arises if the first will is registered and subsequently a codicil or fresh will is executed, is it mandatory to register the fresh will?
The answer to this question is negative. 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 applies irrespective of the fact of registration of the first Will. Further, a Will does not attract any stamp duty.
Testamentary Disposition of Assets Under the Hindu Succession Act
Generally speaking, all assets owned by a testator can be disposed of by a Will, subject to certain conditions and limitations.
According to Section 30 of the Hindu Succession Act (HSA), a Hindu individual may dispose of any property by Will or other testamentary disposition, provided the property is capable of being disposed of by him or her in accordance with the provisions of the Act or any other applicable law.
The Supreme Court case of Radhamma and Ors v. H.N. Muddukrishna and Ors (2019) 3 SSC 611 further clarified that an undivided share in Joint Family Property (HUF property) can indeed be disposed of by a Will under Section 30 of the HSA.
This ruling confirmed that the testator, whether male or female, has the right to make a testamentary disposition of their undivided share in Joint Family Property, which is consistent with the law that allows such dispositions by Will.
Additionally, the nature of the assets, whether immovable or movable, does not impact the testator’s right to dispose of them by Will. Any immovable properties (such as land, and buildings) and movable assets (such as household items, vehicles, cash, ornaments, shares, and
other securities) can all be bequeathed through a Will. This applies to both individual property and undivided shares in Joint Family Property, subject to the provisions of the Hindu Succession Act and other applicable laws.
Thus, a Hindu testator has the freedom to dispose of almost all of their assets, whether movable
or immovable, through a Will, ensuring the transfer of property as per their wishes, as long as
they comply with the relevant legal provisions.
Probate and Letters of Administration
Probate (Section 2(f) of the ISA) means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.
While there is no legal obligation to obtain probate, it becomes essential when dealing with the transfer of immovable property or when a bank requires a probated will to release funds.
Section 213 of the ISA outlines the need for probate when establishing the right of an executor or legatee in court. A will cannot be used to establish a claim in court unless probate has been granted.
The executor is the person named in the will who is responsible for administering the estate. Section 211 of the ISA states that the property of the deceased vests in the executor as soon as they accept the office.
Letters of Administration are granted by the court when a person dies intestate (without a will) or when the will does not name an executor. The term “administrator” refers to the person appointed to manage the estate when there is no executor named in the will.
Importance of Probate and Letters of Administration
Although there is no statutory obligation to obtain probate, it is highly recommended in cases where there is immovable property or significant assets involved. This ensures that the legal heirs or legatees can establish their rights to the deceased’s estate in a court of law.
Section 222 of the ISA specifies that probate can only be granted to the executor named in the will. It is important to note that probate is not necessary for an executor to act on behalf of the estate, but it is crucial for any legal disputes over the estate. Section 227 establishes that probate when granted, validates the will and the executor’s actions from the time of the testator’s death.
Cumulative Reading of Sections 57, 213, and 264 of the Indian Succession Act:
Implications for Executors and Legatees
The Indian Succession Act, of 1925, provides the legal framework for the administration of estates and the succession of property in India. Among its various provisions, Sections 57, 213, and 264 play a pivotal role in determining the procedural requirements for executing a will, particularly with regard to the probate process.
A careful reading of these sections reveals keylegal principles that every executor or legatee must understand to navigate the legal landscape of will execution in India.
Sections 57, 213, and 264 of the Indian Succession Act together offer important insights into the following key points:
1. Requirement of Probate or Letters of Administration
Section 213 specifically mandates that a person claiming to be an executor or a legatee under a will cannot rely upon that will in any court proceeding unless probate has been granted or letters of administration with the will annexed have been obtained. This requirement is particularly pertinent if the will was executed by a person who falls under certain categories specified by the Act.
Therefore, for an executor (the person appointed to execute the will) or a legatee (a person who inherits under the will) to initiate any legal action based on the will, the court must first recognize the will’s validity through the grant of probate or letters of administration.
The need for these legal instruments arises in the context of safeguarding the interests of the deceased and ensuring that the will is executed according to their intentions.
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2. Jurisdiction of Courts for Granting Probate
Section 264 clearly specifies that the jurisdiction to grant probate or letters of administration resides only in certain courts located within specific geographical areas.
These areas include the towns of Calcutta, Madras, and Bombay, as well as any local areas that the State Government may notify in the Official Gazette.
This provision highlights the territorial limitation on the courts that have the authority to grant probate or letters of administration.
Executors or legatees seeking to establish the validity of a will and administer the estate must ensure that they apply to the relevant court within these prescribed jurisdictions.
In certain states, the requirement to seek probate remains mandatory, irrespective of whether the will is registered or not. For instance, in states like Maharashtra or West Bengal, individuals who wish to claim rights under a will may still be required to seek probate in the appropriate jurisdiction.
This is a safeguard to ensure that the testator’s intentions are properly honored and that disputes among heirs are minimized.
In contrast, places like New Delhi do not require probate for the execution of a will. In these regions, as long as the will is clear and unchallenged, the legatees or executors may not need to approach the court for probate.
It is notable that probate is not mandatory in Delhi and as well as the surrounding National Capital Regions of Noida and Gurgaon. However, an executor may choose to apply for probate voluntarily.
Furthermore, while the registration of a will is not mandatory, different states may impose additional mandates concerning the probate requirement.
This variation underscores the need for those involved in the execution of a will to familiarize themselves with the specific legal procedures in their respective states to ensure compliance with local laws. For legal remedies regarding wills and estate planning, contact Ashwarya Sinha today!
Conclusion
In conclusion, the Indian Succession Act offers a robust and flexible framework for testamentary dispositions, ensuring that a testator’s wishes regarding property distribution are respected and legally enforced.
By understanding these legal nuances, individuals can better navigate the complexities of will administration and ensure the smooth execution of a testator’s final wishes.
For seeking personalised information regarding the legal remedies available contact Ashwarya Sinha at: info@ashwaryasinha.com and office@ashwaryasinha.com
