Indian Succession Act, 1925
The provisions under the Indian Succession Act, 1925 deals with a will made by any Hindu, Buddhist, Sikh or Jain in India. Muslims are not bound by this act; disposing of their properties takes place by the Muslim Law only. NRI and PIO persons can also execute a will if they have movable or immovable assets such as bank accounts, fixed deposits, shares and securities, and mutual funds.
Eligibility to make a will
A person can make his/her will only if he/she is:
- Sound mind
- Not a minor
The process to execute a will
- The mark or the signature should be placed clearly, as it should show the intention of the doer to give effect to the writing as a will.
- The will have to be attested by at least two or more witnesses. Each of the witnesses should be among the people who were present at the time of signing, making a mark of the will, by either the maker or the person to whom the authority has been given.
- There is no particular form of attestation of witnesses. But, all the witnesses will sign the will in the presence of a testator—however, it not a compulsion for all witnesses to sign and be present at the same time.
- NRI and POI have to be personally present in India during execution of will.
Kind of property that can be disposed of by a will
- Any kind of movable and immovable property can be disposed of by a will.
- Movable Properties are those which can be transferred from one place to another without causing damage to the property itself, such as cash, bank balance, fixed deposits, shares, mutual funds, jewellery, gold and silver articles, vehicles, furniture, electronic goods, insurance proceeds, and business stock.
- Immovable Properties are those attached to the earth or permanently fastened to anything attached to the earth, such as agricultural land, non-agricultural land, residential flats, houses, bungalows, plots, shops, offices, buildings, and rights attached to land like easements.
The beneficiary of a will
- Any person can be a devisee of a will, be it a minor, a lunatic, a corporation, a Hindu deity or any other juristic person.
Revocation of a will
In these following manners, a will can be revoked:
- Revocation by the execution of a subsequent will
- Revocation by a writing declaration with an intention to withdraw the will
It is noteworthy that once a will is revoked by any of the means, it will become non-operational.
Registration of a will
- There is no particular time limit given for the registration of a will.
Under Muslim Personal Law, a Will (Wasiyat) is governed by the Muslim Personal Law (Shariat) Application Act, 1937, not the Indian Succession Act. A Muslim of sound mind and majority age may dispose of property by Will to take effect after death. The bequest is restricted to one-third of the net estate, and the remaining property devolves on legal heirs as per Quranic succession. A bequest in favour of a legal heir is invalid unless all other heirs consent after the testator’s death. Consent given during the lifetime of the testator has no legal effect. A Muslim Will may be oral or written, registration and attestation are not compulsory, though proof is required in case of dispute. Probate is generally not mandatory for Muslim Wills unless specifically required by law or authority.
As per new gazette Registered No. DL—(N)04/0007/2003—25, probate of will is not required & section 213 of Indian Succession Act 1925 has been omitted by the central government.
The detailed Gazette is attached herewith at the link below.
