Jigar M. Patel
International Tax Attorney
Realizing the Importance of a Will
The importance of executing a Will has yet not been appreciated to its fullest extent in the Indian society. It is, therefore, not surprising to come across several cases where in pursuance to the death of an individual, there are several family disputes and practical problems in the absence of the Will by the deceased.
Law of Intestate Succession
In case of a death of a person who leaves no Will behind him, the division of his properties is required to be done on the basis of the personal law of intestate succession applicable in his case, e.g. in the case of death of a male Hindu who dies intestate i.e. without executing a Will, his properties come to be inherited in equal shares by his heirs under Schedule-I of the Hindu Succession Act. Schedule-I includes the widowed wife, sons, daughters, etc.
Common misconception in regard to distribution of assets
The general conception prevailing in the minds of many is that on the death of a male Hindu, his assets are required to be distributed only between his widowed wife and sons. However, as per the provisions of law, both married and unmarried daughters are entitled to receive equal shares in the same proportion as widow and sons.
Plethora of complications in absence of a Will
Where the deceased individual has not executed a Will outlining the actual distribution of his properties amongst the legal heirs, this can give rise to complications. Moreover, where the legal heirs become entitled to various immovable and movable properties, in the absence of a Will, passing of a legal title to them also becomes difficult, since such legal heirs would have to obtain a succession certificate from the Civil Court, the procedure for which is both time consuming and expensive.
Some Basic Concepts regarding a Will
Any adult individual having a sound mind can execute a Will in respect of his property and under the said Will he can bequeath his self-acquired property to any person or persons of his choice. The only exception in this regard is under the provisions of Mohammedan Law under which a Muslim can bequeath only one-third of his property under a Will. Under the provisions of Hindu Law, a Hindu can, apart from his self-acquired property, also make a Will in respect of his share in Hindu Undivided Family property.
It should be kept in mind that the implementation of the distribution of the property under the Will takes place after the death of the individual and accordingly during his life time he can fully enjoy the same. Moreover, an individual can change his Will any number of times during his life time. When a new Will is made, the old Will is deemed to have been automatically cancelled. Upon death of a person the effective Will is the last Will made by him.
Significance of a Codicil
When an individual has made a Will before and instead of making a totally fresh Will, if he wants to make some additions or alterations, this can be made by a supplementary or additional Will which is known as ‘Codicil.’ Where Codicil is made, the Will and the Codicil are to be considered as joint and complimentary to each other.
