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Feb 23, 2024

  • In legal terminology, a ‘Will’ or ‘Testamentum’ is a testamentary disposition of a person’s Real Property, representing the individual’s desires regarding the distribution of assets posthumously. Section 2(h) of the Indian Succession Act, 1925 defines a Will as the declaration of a testator’s intentions concerning their property after death.
  • To ensure statutory compliance, recent Supreme Court rulings emphasize the mandatory attestation of Wills by two or more witnesses. Additionally, principles under Section 63 of the Succession Act and Sections 68 and 71 of the Evidence Act, 1872 outline key aspects for validating a Will. These include the testator’s free will, sound state of mind during execution, awareness of the document’s nature, absence of suspicious circumstances, and the examination of at least one living attesting witness.
  • Contrary to compulsory registration, the Indian Registration Act, 1908 and Indian Stamp Act do not categorize Wills as mandatory register able or subject to stamp duty. The absence of registration, however, does not render a Will improbable, as suspicious circumstances must be independently addressed. The registration of a Will help in establishing the fact of its execution in a fair and transparent manner making it legally enforceable, in the absence of a subsequent testament.
  • The Hindu Succession Act, 1956 allows any Hindu to dispose of property through a Will, whether self-acquired or inherited or his/her share in HUF property including immoveable or movable property, irrespective of the place of execution of the Will. Once a property passes to the successor in pursuance to a Will, such inherited property shall be considered as good as a self-acquired property for all legal purposes.
  • Importantly, a Will remains ambulatory during the testator’s lifetime, subject to revocation under Section 70 of the Indian Succession Act, with an exception for Hindu testators in the case of subsequent marriage.
  • In summary, this comprehensive overview sheds light on the legal intricacies surrounding Wills, emphasizing the importance of adherence to statutory requirements and evidence of the testator’s intentions.

*INMACS LAW OFFICES: This article is intended for informational purposes and does not constitute legal advice.*