Succession to the self acquired assets
of the deceased as per his declaration is Testamentary succession. The
declaration of the deceased is called WILL, and the person (deceased) is called
Testator. The Indian succession Act 1925 deals with the testamentary succession
and is applicable to wills made after 1st January 1866 but not to wills made by
Mohammadans.
The Will operates only after the death of the Testator, but not from the date of execution. It can be revoked at any
time by the testator during his life time. Though the word irrevocable is used
in the wills, it does not prohibit the will being revoked.
There are two kinds of wills,
privileged will and unprivileged will.
Privileged will is made by soldier, airmen, employed in expedition, or
actual warfare and a mariner in sea. All
other wills are called unprivileged wills.
The general rule is that the testator
should not be a minor. But in case of father, irrespective of his age, may
appoint a guardian for his minor children, who is called Testamentary guardian.
Signature or mark of the testator is
necessary for unprivileged will. In certain cases, it may be signed by some
other person in the presence of testator and under testator's direction. But it is always advisabe to have will signed
by the testator to avoid any disputes later. Every unprivileged will should be
attested by atleast two witnesses, who have seen the testator or his agent sign
the will. Each witness must sign the will in the presence of the testator. But
it is not necessary that each witness sign at the presence of other witness.
No stamp duty is payable on will,
hence need not be written on stamp papers.
As per the Indian succession act, if
the testator makes any gift to the attesting witness, wife or husband of the
attesting witness, such gift becomes void, the will be deemed valid. But this
clause does not apply to Hindu, Budhists, Sikhs, Jains etc., so a legatee under
the will of a Hindu will not lose his legacy only because he has attested the
will.
Copy of the will duly, certified under
the seal of a competent Court, with grant of administration to the estate of
the deceased is called probate.
A duplicate will is one of which two
or more copies are made. If such a copy is signed by the testator, it can
operate as the original will. Here a will is executed in duplicate, one of
which the testator retains, while the other is deposited in the custody of
another, then the destruction of the duplicate, which was in the testator's
possession, revokes the will.
Every person (a) who is of sound mind
and (b) who is not a minor, can dispose of his property by will. A married
woman can dispose of by will any property which she could alienate by her own
act during her life-time. Persons who are deaf or dumb or blind can make a
will, if they are able to know what they do by it. A person who is ordinary insane may make a
will during an interval during which he is of sound mind. However, no person
can make a will while he is in such a state of mind that he does not know what
he is doing.
Yes, there is provision for safe
custody of will as detailed in Indian Registration Act, 1908. The testator, that is the person who makes
the will or his duly authorized agent may deposit the sealed cover containing
the will with any registrar for safe custody. The cover should be superscribed with the name of the testator or his
agent with a statement of the nature of the document. An amount of Rs.1,000/-
will be charged as fee.
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