The Entire Law On The Making Of Wills Explained
K. H. Kaji & Manish K. Kaji, Advocates
Though the law on the making of Wills is important, there is considerable confusion in the minds of even educated persons and some times even amongst tax practitioners as to the scope of the law. To dispel the confusion, the authors have written this guide in an easy to understand format
WILLS AND ITS ADVANTAGES
Considerable confusion prevails in the minds of even educated persons and some time even amongst Tax Practitioners as to the law of Wills in India.
Every person who has assets and property and a family should make a Will whether he is young or aged. It is an erroneous impression in the minds of persons that one should make a Will only when he is aged and not in good health.
With the above back ground I would like to deal with the topic of Wills, when and how it should be made and whether it requires witnesses or registration or stamp paper for making a Will and the advantage of making a Will.
In contrast to the complicated and legal wordings required for executing a sale deed or a deed of mortgage or a deed of gift, the drafting of a Will has a very simple formality. The following aspects are required to be kept in mind while dealing with Will and its advantages.
At the outset it may be stated that the law of Wills is substantially governed by Indian Succession Act, 1925 hereinafter referred to as “ISA”. However, many sections do not apply to Hindus, Buddhists, Sikhs, or Jains shortly referred to hereafter as “Hindus etc.” Further, most of the provisions do not apply to Muslims.
The subject will be discussed hereinafter under different heads :-
(A) WHAT LAW GOVERNS THE TESTATOR?
So far as immovable properties are concerned the making of Wills will be governed by the law of the place where property is situated. However, this proposition is important only if there are properties outside India.
So far as movable properties are concerned it will be governed by the law of testator’s domicile. In brief it may be mentioned that domicile is determined on the basis of a person’s residence and the intention to remain there indefinitely but not on account of service, unless some circumstances should occur to alter his intention.
(B) WHAT IS DOMICILE?
1. Definition of “Domicile” not exhaustive
The word “domicile” is not capable of a precise and exhaustive definition. Halsbury’s Laws of England defines it as: “A person’s domicile is that country in which he either has or is deemed by law to have his permanent home”. There are two elements constituting domicile: (1) residence, (2) intention to remain there for ever unless some circumstances should occur to alter his intention. Every person will have domicile of origin which will be the country of his father’s domicile at that time, if he is born in lawful wedlock (Section 7) otherwise, the mother’s domicile (Section 8). This domicile of origin continues till a new domicile is acquired by taking up a fixed abode elsewhere with the intention of permanently residing there and no intention to revert to the place of domicile of origin. Merely taking up service or carrying on profession elsewhere for indefinite period will not amount to giving up domicile of origin (S. 10). Generally, minor’s domicile follows domicile of the father or mother as the case may be, unless he is in service of Government or has set up a distinct business with consent of the parent or is married (S. 17). A woman’s domicile follows that of her husband on her marriage until they are separated by order of Court (Sections 15-16).
2. Special Mode of acquiring Domicile.
There is a special mode of acquiring Indian domicile prescribed in S. 11. A declaration in writing to acquire such domicile can be lodged by a person in office prescribed by Government for this purpose provided he is in India for one year prior to such declaration.
(C) WHAT IS WILL?
Will is a legal declaration by a testator with respect to his property which he desires to be carried into effect after his death. Mere expression of desire is not enough in law but there is must be clear words bequeathing the property after the death of the testator. Therefore during his life time Will is always revocable. It may be noted that when a woman is making the will, the word used is “Testatrix”
It is necessary to emphasize that Will need not comprise the entire property of the testator. It may be limited to a portion of it. Similarly several Wills can be legally executed by the testator for different properties. If there is no will qua a particular property it devolves by intestate succession. To avoid this situation a residuary clause is generally added in the Will, bequeathing all remaining & unmentioned properties to certain legatees.
(D) WHAT IS CODICIL?
It is document executed in the same manner as a Will changing or altering or adding to the disposal made earlier in the Will. Just as a Will can be revoked by subsequent Will, a codicil can also be revoked by subsequent Will or Codicil. It may be noted that putting cross lines on the Will or codicil does not amount to cancellation or revocation of the Will/ codicil unless such cancellation follows the procedure required for making the Will and words are used to that effect.
(E) KINDS OF WILLS
Usually Will is made by a single individual for his own property. However, the following two kinds of Wills may be mentioned:-
(i) Joint Wills:- In this case a single document is executed by two or more persons disposing of their separate or joint properties to same or different legatees. Such a Will operates separately and independently as regards each testator on his death. It is revocable by each of them prior to his death and even by survivor on the death of one of them.
(ii) Mutual Wills:- In this case a Will is made by two testators conferring reciprocal benefits on each other. This is mostly in case of husband and wife. Such Wills are revocable so long as both the testators are alive but if one of them dies and the other takes the advantage under it, then it becomes irrevocable by him/her.
(iii) Oral Wills are not valid in India except in the case of Muslims or soldiers on front etc.
(F) CAPACITY TO MAKE WILL.
All persons of sound mind not being minors are competent to make a Will. In India, person attains majority at completion of 18 years unless guardian is appointed by Court of his person or property in which case he attains majority on attaining 21 years. Insane person can also make a Will during his lucid interval.
As a Will disposes of the property after testator’s death it can be revoked or altered at any time during his life time.
There is no limitation on the person’s power to deal with his property. He may exclude his near relations and give the property to total strangers in preference to his relatives. Even if the Will is unreasonable excluding his close relations it would be valid and effective if it is established that the person was of sound mind and not under coercion or undue influence while making the Will.
(G) EXECUTION OF A WILL.
The requirements of making a Will are very simple:-
It must bear Testator’s signature (which includes even a mark or thumb impression) in presence of a two witnesses who have seen the person sign the Will or to put his mark or thumb impression. Two witnesses are essential for attesting the Will but both need not be present at the same time.
Will is not required to be executed on any stamp paper and it is not required to be registered under any law. The language can be very simple and it need not use legal wordings.
It is optional for a person to get the Will registered so that the proof of making of the Will by testator becomes easier in case any dispute or challenge is feared by the testator or is raised after his death. The attesting witnesses or the testator may sign at any place but generally and advisedly it should be put at the end of the document and also each page may be signed or initialed by the testator so as to avoid substitution of the page by someone. The normal phraseology used for Testator and attesting witnesses is as follows:-.
Dated this ____ (date) day of ____________ (month) _______(Year).
Signed in the presence of
(Name of the witness)
(Name of the witness)
It is important to note that attesting witness is not required to know the contents of the Will. He is only testifying that the Will is signed by testator in his presence.
(H) REVOCATION OF WILL
The Will can be revoked in the following ways:-
(i) By another Will or Codicil.
(ii) By any writing declaring an intention to revoke the Will or Codicil and executed in the same manner as a Will.
(iii) By burning, tearing or otherwise destroying the Will by the testator.
As said above, merely cancelling by crossing two lines over it will not amount to valid revocation. It may also be noted that there is no automatic revocation of the Will by the marriage of the testator. Provision in s. 69 providing for cancellation of the Will on marriage does not apply to Hindus etc. but applies to Christians & Parsis.
(I) PROPERTY WHICH CAN BE DISPOSED OF BY A WILL.
It is obvious that any property which the testator can dispose of while alive can be disposed off by Will. This is so unless his interest in the property comes to an end on death, for example, in case of life interest. There are cases where power of appointment to dispose of property is given to a person, inter vivos or by Will. In such cases such property though not owned by the testator can be bequeathed by Will.
(J) BEQUEST WITH REPUGNANT CONDITIONS.
It may be noted that testator cannot bequeath the property to someone and at the same time restrict its enjoyment or disposal by such a legatee. In that case the bequest will be valid but the condition will be invalid. This aspect requires to be made clear because very often person making a Will will bequeath the property to his wife but provide that after her death she will not be able to dispose of the property by Will, to other persons such as her brother or parents but the same should go to testator’s children or any other person. If such is the intention of testator, he has to confer only life interest to the legatee to use the property during the life time and provide to whom it will go on death of life estate holder. Similarly while bequeathing the property he cannot laid down a the special mode of devolution of property, once he has disposed of the same in favour of the legatee.
(K) DEPOSIT AND REGISTRATION OF WILL
As stated above it is optional for the testator to register his Will in which case himself and the two witnesses will have to sign in the presence of the Sub-Registrar under the Indian Registration Act.
This ensures the validity and the genuineness of the signature of the testator and the two witnesses.
Another alternative available to the testator is depositing the Will under provisions of the Registration Act. This deposit ensures a safety of the Will. The Will duly executed as above put in the sealed cover can be submitted to the Sub-Registrar by the testator or by his agent and the same can be withdrawn at any time by the testator or his authorized agent. It may be noted that Will which is registered or deposited can be revoked or cancelled at any time and another Will can executed by the testator without registering the same.
(L) COPARCENARY PROPERTY
Under Hindu Succession Act as amended in 2005 a male or female may dispose of by his/her share l in the Joint family property by will. Male member can dispose of the share by Will so also a daughter who becomes a coparcener like a son may dispose of the same by Will. Wife/mother who got the share in the joint family property at the time of deemed partition on account of death of the husband, or on actual partition between father and son or between sons can also dispose of her share in the property by Will.
(M) PROBATE OF WILL
Without going into the details of the procedure for obtaining probate to be issued by the Court, It may be stated that procedure for getting a probate is provided in Indian Succession Act. When authorities such as Banks, Companies, Revenue Authorities etc. do not accept the Will unless the same is probated Probate has to be taken Probate is nothing but certified copy of the Will under seal of the Court after issuing notice to heirs.
(N) WILLS AND TAX PLANNING
Quite often tax planning is resorted to by a testator through the medium of a Will. Also social aspects may require the testator not to give away property to one or more legatees specifically but to create the trust of the properties or part of the properties, mentioning the beneficiaries but providing indeterminate shares to the beneficiaries and leaving the distribution of income or corpus to the trustees of the trust considering the need or requirement of various persons mentioned in the trust deed as beneficiaries. The obvious advantage in adopting this method is to see that the income or corpus of the property settled on trust is distributed to all or some of the beneficiaries as per the requirement of those beneficiaries such as education, marriage, settlement in life etc. The tax advantage will result if the trust created by Will does not give the income or corpus separately to one or more beneficiaries but provides indeterminate shares in the income or property at the discretion of the trustees. In case of such a trust created by Will it will be a separate taxable entity liable to tax at the appropriate rate and not at the highest tax rate which would be the position if such trust with indeterminate shares was created during his life time. However, only one such trust with indeterminate shares can be created for getting the benefit of being taxed at appropriate rate. The advantage would be that the income distributed by trustees will not be taxable in the hands of the beneficiaries who receive the same but will be taxed in the hands of the trustees at the appropriate rate and not at the maximum rate. If a trust is created with specific shares to the beneficiaries income or corpus which a beneficiary is entitled to have, the income or wealth will be added to his/her income or wealth. This situation will be avoided by creating a trust by will with indeterminate shares.
(O) BEQUEST TO UNBORN PERSON AND RULE AGAINST PERPECTUITY
Very often the testator desires to bequeath his property to his grand children who are not in existence at the time of making of the Will or even at the time of his death. Such a bequest to an unborn person is governed by Section 112 & 113 of the Indian Succession Act. Under the said Sections a direct bequest in favour of persons not in existence at the time of testator’s death is declared void. By way of exception to the above position the section provides for situation where there is a prior bequest in favour of an existing person which is to precede the bequest to the unborn person who stands in particular degree of relationship to a specified individual and vesting of the bequest is otherwise deferred to such a unborn person until a time later than the death of the testator. In such situation under the above exception if a person answering the description is alive either at the death of the testator or comes in to existence between that event and such later time then the bequest shall go to such person, though he may not have been in existence at the time of testator’s death and if such person is dead than the bequest shall go to his legal representatives. Further under s. 113, bequest to the unborn person has to comprise the whole of remaining interest of the testator in the property bequeathed. In both the situations the bequest cannot remain in abeyance at any point of time. It is not possible to discuss in detail the above subject.
The rule against perpetuity is governed by section 114 of the Indian Succession Act. For the sake of clarity section 112 & 113 as well as 114 are reproduced below to avoid any confusion.
“112. Bequest to person by particular description, who is not in existence at testator’ s death.- Where a bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who answers the description, the bequest is void.
Exception.– If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise; and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall, at such later time, go to that person, or, if he is dead, to his representatives.
113. Bequest to person not in existence at testator’s death subject to prior bequest.- Where a bequest is made to a person not in existence at the time of the testator’ s death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.
114. Rule against perpetuity.- No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life- time of one or more persons living at the testator’ s death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong”.
(P) PROVISION FOR ACCUMULATION
It may be noted that under s. 117 of Indian Succession Act provision to accumulate income wholly or in part for a period longer than 18 years from the death of the testator shall be void to that extent. There are certain exceptions which are as under:
“117. Effect of direction for accumulation –
(1) Where the terms of a will direct that the income arising from any property shall be accumulated either wholly or in part during any period longer than a period of eighteen years from the death of the testator, such direction shall, save as hereinafter provided be void to the extent to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.
(2) This section shall not affect any direction for accumulation for the purpose of–
(i) the payment of the debts of the testator or any other person taking any interest under the will, or
(ii) the provision of portions for children or remoter issue of the testator or of any other person taking any interest under the will, or
(iii) the preservation or maintenance of any property bequeathed; and such direction may be made accordingly ”.
(Q) BEQUEST TO AN EXECUTOR
It may be noted that under s. 141 of Indian Succession Act the bequest to an executor mentioned in the Will to carry out the provisions of the Will is invalid unless he proves the will or otherwise manifests an intention to act as executor.
(R) BEQUEST TO AN ATTESTING WITNESS
Bequest is invalid under s. 67 Indian Succession Act, but the section does not apply to Hindus etc. Hence it would be valid for Hindus etc.
(S) CERTAIN GENERAL PROVISIONS REGARDING THE MAKING OF THE WILL.
(1) It is also suggested that if the testator does not desire to register the Will he and the witnesses can execute the same before a notary. It will be sufficient proof that the Will has been executed by the testator and attested by two witnesses. It may be noted that at present the notary requires passport size photograph to be affixed to the document at the end.
(2) Property which is subject to encumbrance cannot be bequeathed without liability. The liability has to be discharged either by the testator’s estate or by the legatee as provided by the Will.
(3) Even if the property such as shares or house in a society contains nomination in favour of wife or son, it can be bequeathed to anyone because the nominee is not entitled to be the owner on the death of the testator, but he holds the same on behalf of the legal heirs mentioned in the Will or on intestacy. The situation will be different if there are joint holders (such as wife or son) on the record. Then, the second holder becomes the owner of the property.
(4) Section 118 of Indian Succession Act puts restriction on bequest to charity in case of person having a nephew or niece or any nearer relatives, except as provided by following the requirements mentioned in Section 118. The section However, this section has been struck-down by Supreme Court as unconstitutional in the decision in AIR 2003 SC 2902.
(5) If a person who has made the Will ceases to be a Hindu etc. and becomes a Christian he will not be governed by Hindu Law but will be totally governed by all provisions of Indian Succession Act.
In brief the following are the benefits/ advantages in making a Will:
(i) Procedure is very simple.
(ii) Different Wills can be executed for different properties.
(iii) Can be easily revoked, by following the same procedure.
(iv) One discretionary trust can be created by Will for tax benefit as stated above.
(v) Capital gain on transfer of capital assets is avoided by giving the property by Will as against transferring the same during the testator’s life time.
(vi) It enables the testator to give the property to anyone he desires as against mandatory provisions of Section 8 (in case of male) or Section 15 (in case of female) under Hindu Succession Act under which property will go to the heirs mentioned in the above sections.
It is therefore very desirable for a person having property to make a Will so that the property after his death can go to the persons he desires.
(T) ONEROUS BEQUEST
1. Option to legatee in the case of onerous bequest
Sometimes the testator not only bequeaths property to a legatee, but either the property itself is coupled with some obligations or liabilities, e.g discharge of a mortgage or charge or payment of business debts (if business is bequeathed) or some other liabilities or obligations are imposed on the legatee while bequeathing the property, e.g paying the testator’s debts or giving annuity to some person or to maintain some person. In such a case, the bequest is called an onerous bequest and the legatee has to take both the legacy and the obligation or neither. He cannot accept only the beneficial bequest and reject or disown the obligation (section 122).
2. When bequests are distinct and independent
But if the two bequests are distinct and independent a legatee is entitled to accept one bequest and disclaim the other (section 123). For example if shares are bequeathed on some of which calls are outstanding, then the legatee may accept the bequest with regard to shares where calls are not outstanding and disown the other bequest. Similarly, if the bequeathed property is itself subject to encumbrance like pledge, mortgage, etc the legatee is liable to discharge the said encumbrance.
(U) EFFECT OF CONVERSION ON TESTAMENTARY POWERS
1. On conversion to Islam, convert to be governed by Mahomedan law.
On conversion to Islam by any person of any other religion the convert will be governed by the Mahomedan law as to the making of Wills and the restrictions discussed hereafter including the power of disposal and the persons to whom bequest can be given up to one-third only will apply. However, on account of custom and usage, khojas and Sunni Bohras of Gujarat can make testamentary dispositions of their whole property not limited to one-third only unless they make a statutory declaration under Section 3 of the Shariat Act, 1937 restricting their powers to one-third only.
1. Other Converts
In the same manner, converts as well as reconverts to Hinduism would be governed by Hindu law and the provisions of the Indian Succession Act will apply to them to the same extent as to other Hindus. So also the Hindus converted to Christianity would be wholly governed by the Indian Succession Act as Christians.
(V) CONTENTS OF THE WILL
1. Necessary Contents
Let us recapitulate what the Will must contain : (1) a writing, (2) signed by testator who is major and of sound mind, (3) and attestation by two witnesses (4) disposition of his property to take effect after death.
2. Desirable Contents
But let us see what the Will may usefully contain, and therefore, desirable, through not obligatory:-
(1) Appointment of two or more executors jointly or in alternative. Advisedly there should be odd number of executers.
(2) Full name and addresses of the attesting witnesses below their signatures.
(3) Interpretation of the Will to the testator by an independent person, if testator does not know or is not familiar with the language in which it is written though he might have signed it in that language.
(4) List of specific bequests to various legatees, also stating to whom it should go if legatee is dead when testator dies.
(5) A residuary bequest of all left out properties including properties covered by void bequests.
(6) Bequest of coparcenary interest in joint family property.
(7) List of properties at the time of making of the Will.
(8) If trusts are created by Will, clear mention of names of trustees, beneficiaries created by Will, clear mention of names of trustees, beneficiaries and properties comprised therein.
(9) If life interests are intended, it should be clearly so stated.
(10) Similarly, if absolute interest is to be created, it should be so stated.
3. In whose favour bequests can be made
It may be noted that bequests can be made in favour of (1) H.U.Fs, (2) Private Trusts or Public Charitable Trusts (3) Ltd. Companies, (4) A.O.Ps (5) Firms and (6) Deity – Idol.
(W) SOME FURTHER ASPECTS OF DISCRETIONARY TRUST BY WILL.
1. Discretionary trust by Will is the most commonly utilized mode of tax planning by reason of the second exception to Section 164 of the Income Tax Act. Section 164 and the corresponding provision of the Wealth Tax Act contained in Section 21 provide that where income or wealth is receivable under a trust declared by Will the maximum marginal rate is not applicable and only the appropriate rate will be attracted on the income or wealth on such a discretionary trust. Thus, it is most advantageous to create a discretionary trust both as regards income and wealth left by a testator to a group of legatees. The requirement of the law is, therefore, satisfied when a trust is declared by a Will and the income or wealth is receivable under such a trust and such income or wealth is not specifically receivable on behalf of any one person or individual shares therein are indeterminate or unknown. If these requirements are satisfied, then discretionary trusts created by Will will be taxable as a separate unit of assessment under Section 164 qua income and Section 21(4) qua wealth and neither the income nor wealth will be includible in the assessment of the beneficiaries. But see CIT v/s. Kamalini Khatau, 209 ITR 101 (SC) when it is held that if any beneficiary of a discretionary trust has received any income from the trust, it is open to the Income Tax Dept. to tax the beneficiary on the income received under s. 166 which permits such direct assessment. This mode of planning has certain obvious advantages: (1) the income or wealth is not includible in the assessment of any beneficiaries under such trust and (2) the trust will be taxed as an independent unit at an appropriate rate. Thus, the assessments of the beneficiaries are not disturbed unless income is received by any beneficiary in which event Dept. has option to directly tax the beneficiary on that income, coupled with his other income. (See CWT v/s. Arvind Narottam, 102 ITR 232 (Guj). (4) The trustees would have discretion of distributing income and wealth amongst the beneficiaries in such proportion as they think necessary from time to time, thus enabling them to distribute the estate according to the needs of the beneficiaries. Even they can be empowered not to distribute but to accumulate income or distribute to some & not to other, further if long period is mentioned of the trust provision can be made to accelerate distribution period or extend it. Further future beneficiaries can also be provided for adding such as future spouse or children of existing beneficiaries.
(X) WHETHER TRUST CAN SUBSEQUENTLY RECEIVE GIFTS/ DONATIONS
Another question which has often arisen in the context of such a discretionary trust is whether such a trust can subsequently receive gifts or donations after they come into force on the death of the testator and if so, how the income from such subsequently gifted amounts is to be treated. The point is debatable. Every gift in fact, creates a new trust for the same purposes and, therefore, the income from such gifted amounts and the gifted amounts themselves cannot be said to be part of the trust declared by Will and they may not be entitled to the benefit of the appropriate rate of tax but may be liable to be taxed at a maximum marginal rate. It is also possible to contend that it amounts to a gift to an existing trust and a new trust does not come into being with every donation subsequently made. There is no decision of any Court on this point.
(Y) DISCRETIONARY TRUST AND SECTION 80L
One more benefit available to discretionary trusts is that they are treated as “individuals” for purposes of section 80L and are entitled to benefit of deduction under section 80L as held by the Gujarat High Court in the case of Deepak Family Trust No. 1 v. CIT (1995) 211 ITR 575(Guj) and Harjivandas Juthabhai Zaveri v. Dy. CIT (2002) 258 ITR 785(Guj). Thus the taxable income will be further reduced by deductions available under section 80I.
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