Transferring immovable property through Wills represents a strategic approach to estate planning and asset management. Will is one of the most popular instrument for transferring of properties in India. It is a legal binding document wherein an individual i.e a testator declares his/her intention with respect to ownership and transferability of assets and wealth upon his/her demise. Unlike any other document, a Will comes into effect only upon the death of the testator.
The Indian Succession Act, 1925 (‘the Act’) is a significant piece of legislation that governs matters related to Wills in India. Section 2(h) of the Act defines Wills as ‘the legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death.’
Form and Language of a Will
A Will may be in any form, but to be effective it must be properly signed and attested as required by the Act. It is not necessary that it should be of a testamentary form in order to operate as a Will, but there must, in all cases, be the animus anintus testandi, i.e the intention that the writing should operate as a will. An affidavit of the father given to the bank that his son was the only heir to his property and that his daughter does not have any right in the property was held not to be treated as a Will, especially when the document did not have the characteristics of a clear intention of disposition to the exclusion of his daughter and the same also not having been attested by two persons, as required by law.
A will may be written in any language and no technical words are necessary. Only the wordings shall be such that the intention of the testator can be known therefrom (section 74 of the Act). However, if technical words are used by the testator, he will be presumed to use them in their legal sense unless the context indicates a clear contrary intention. Using simple straightforward language can help prevent misunderstandings or disputes among beneficiaries. Some keys points to remember while drafting the language of a Will are as follow:
a. Clarity- use clear and precise language to avoid any ambiguity in instructions. It is crucial for the will to be clear and unambiguous to avoid disputes among beneficiaries.
b. Consistency- be consistent in your use of terminologies and naming of beneficiaries and assets.
c. Certainty- clearly specify who should inherit what, using full names and detailed descriptions of the immovable properties.
Registration of a Will
The registration of a Will is not compulsory. It is the discretion of the testator whether he wants to register his will according to the Registration Act, 1908 or simply wants to make a document that clearly expresses his willingness to distribute his immovable property to the concerned beneficiary.
According to the Registration Act, 1908, a document must be registered within 4 months of its execution; however, Section 23 read with Section 27 of the Indian Registration Act stated a special exception for Will that allows registration of Will even after its execution and without a time limit.
A will that has been registered is assumed to be genuine. However, In the case of “Rani Purnima Devi And Another vs Kumar Khagendra Narayan Dev And Another”, the Supreme Court held that, “Registered Will not by itself be sufficient to dispel all suspicion regarding it, where suspicion exists without submitting the evidence of registration to a close examination, it will not make the will entirely valid.” Although registering a Will can reduce the likelihood of disputes, it is important to note that even an unregistered Will hold legal validity.
Probate and Letters of Administration With Will Annexed
It is imperative to mention that upon the demise of the testator, a Will is enforced by the Executors after filing an application before a competent court for obtaining probate or a letter of administration with Will. Probate is the process through which a Will is certified under the seal of a Court of competent jurisdiction with a grant of administration of the estate of the testator. Once a probate is issued, the beneficiary shall be entitled to interalia inherit the immovable property of the testator as specified in the Will.
Letters of Administration is also a legal document issued by the Court, which allows the administrator to manage and distribute the deceased’s assets. There are two distinct types of applications for Letters of Administration: One where the deceased has died intestate and the other where the deceased has left a Will but there is no executor available to apply for a grant of probate. Letters of Administration with a Will annexed can be made in the following cases:
a) When Executor declines or fails to accept to executorship;
b) When no executor of the Will is appointed in the Will;
c) When executor refuse to act or is legally incapable to do so;
d) When the executor dies prior to administration of the estate.
Moreover, obtaining a probate of Will is applicable only in Mumbai, Chennai and Kolkata wherein the Will is executed in either of the three cities or the immovable property bequeathed under the Will is situated in any of these cities.
Conclusion
Transferring property through Wills provides individual with strategic and controlled methods to pass on their immovable property while ensuring their wishes are respected.
While the process of preparing a Will involves adherence to legal formalities, the appointment of executors, and consideration of various contingencies, it is an essential tool for transferring immovable property. The detailed provisions regarding execution of a Will are set out in Section 63 of the Act.
Overall, the transfer of immovable property through Wills is a cornerstone of testamentary succession, enabling individuals to leave a legacy and ensure the orderly distribution and transfer of their immovable property in accordance with their wishes.
(By Bhoumick Vaidya, Partner, and Tasneem Zaveri, Associate at Shardul Amarchand Mangaldas & Co)
Disclaimer: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Further, the views in this article are the personal views of the author.