During lifetime, one can form a trust, give gifts or have a partition of property, but after death a will or nominations are the only means to determine the share(s) of inheritors

A Will is a document which ensures that the wishes of an individual with respect to his assets and property are followed after his death. The absence of a Will or its invalidity often generates problems for the legal heirs and successors.

Estate planning is an unpleasant subject. People keep putting it off because they are “too busy,” or they think they don’t own enough assets, or most important they don’t like to think about death as it can raise some difficult emotional issues. Unfortunately, ignoring these issues now may cost your family lakhs of rupees and cause considerable anguish among your successors. It happens all too frequently. Indian courts are saddled with property disputes.

Consider a couple of examples. Dhriubhai Ambani, whose business acumen remains unquestioned, started Reliance Industries with a capital of mere Rs 15,000 in 1958. The group had a gross turnover of Rs 75,000 crore in 2002 at the time of his death. However, his Will was not clear; resulting in fights between his sons, Mukesh and Anil, for the control of the group.

Parveen Babi—heartthrob of millions, the first Indian actress to adorn the cover of Time magazine—was the only child of an affluent family of Junagarh. She did not marry and did not leave a Will. Result: massive fights amongst her relatives on her property

During lifetime, one can form a trust, give gifts or have a partition of property, but after death a will or nominations are the only means to determine the share(s) of inheritors.

How much do you own?
Seems like a simple question, but it is not. Most people think of their estate as their house, car, or jewelry. Please do not forget the funds in your retirement plan, PPF, EPF, mutual funds, equity shares and life insurance policies.

The objectives of estate planning are transfer of assets to beneficiaries, planning for incapacity, orderly business succession, who shall receive what and when; and selecting executor, trustee, and guardian of your choice.

Characteristics of a Will
A Will takes effect after the death of the testator. Sec 62 of the Indian Succession Act, 1925, provides that a Will can be altered or modified at any time by the testator during his lifetime. Any clause in a Will that the testator cannot revoke can make it void.
A Will is legal declaration, and some formalities must be complied with to make it valid.
A Will must be signed and witnessed.
According to Sec 59 of the Indian Succession Act 1925, any person of sound mind who has reached the age of majority can make a Will. Lunatic and insane persons, minors and a person imprisoned in jail cannot make a Will.

Applicable Laws & Special provisions
India has a well-developed system of succession laws. The Indian Succession Act, 1925, applied to both intestate and testamentary succession of Hindus, Buddhists, Sikhs, Jains, Parsis and Christians but not to Muslims as they were covered by Muslim Personal Law.

The Hindu Succession Act, 1956, amended the Indian Succession Act, 1925, and dealt with Intestate Succession for Hindus (not Muslims, Christians, Parsis or Jews). Probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai and pertains to immovable property in these cities.

In case of Hindu, Sikhs, Jains and Buddhists a Will is not revoked upon their marriage.
On the marriage of a Parsi or Christian testator, the Will stands revoked. A Muslim can bequeath only one-third of his property by Will. The remaining two-thirds must, in any case, be distributed according to the rules of intestacy, unless there are no heirs at all claiming adversely to the legatees.

Registration

Under Section 18 of the Registration Act, the registration of a Will is not compulsory. However, registering a Will is strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity.

Once a Will is registered, it is placed in the safe custody of the Registrar and, therefore, cannot be tampered with, destroyed, mutilated or stolen. It shall be released only to the testator or, after his death, to an authorized person who produces the Death Certificate. Though a Will is not compulsorily registrable, the mere fact that a Will is not registered is not a circumstance to go against the genuineness of the Will.

Some facts about laws of succession

The Hindu law recognizes the right to succession of a child which is not as yet born. Such a child succeeds to the estate of a person who died during the period of its gestation, upon its being born alive.

Another rule is that when two people die simultaneously, the younger is, by an artificial rule, presumed to die subsequent to the elder. Next rule is that a murderer (or an abettor) will not succeed to the estate of the person who was murdered.

If a Hindu male passes away without a Will, the sons and daughters will succeed with equal shares. The wife as well as the mother also gets an equal share. However, there is nothing to prevent a Hindu male from giving away his entire self-acquired property to a stranger if he so desires.

As mentioned earlier, a Muslim male cannot will away more than one-third of the estate. Two-thirds of the property must be divided among the family members in the shares laid down in the Shariat Act, 1937. A Muslim wife cannot be dispossessed and gets definite share. She has to share this with other wives, if there are more than one. Muslim law gives the male heirs (sons) twice the share of the daughters.

A holographic Will is a will entirely in the handwriting of the testator. Normally, a Will must be signed by witnesses attesting to the validity of the testator’s signature and intent, but in many jurisdictions, holographic Wills that have not been witnessed are treated equal to witnessed Wills.

The Guinness Book of World Records lists the shortest will in the world as ‘ALL TO WIFE’ written on the bedroom wall of a man who realized his imminent demise and made a swift attempt to distribute his wealth before expiring. It clearly meets the minimum requirements, being his own work and no one else’s.

Oral Will can be made when death is imminent. It must be witnessed by at least three persons, who are not the beneficiaries, and reduced to writing by them after the testator’s death.
Under the law in England and Wales, oral Wills are permitted to armed forces personnel and merchant seamen on duty, when death is imminent, and are also allowed in Commonwealth Countries, including India. Oral Will can also be made by the Indian Air Force pilot on wireless from the aircraft when the crash is imminent.

Amendment to Sec 6 of the Hindu Succession Act w.e.f. September 9, 2005: Daughter will have equal rights and liabilities as a male coparcener. Any division or a partition prior to December 20, 2004, cannot be opened. The law is prospective in nature and not retrospective.