All About Property Wills And Codicils


Matters pertaining to succession and inheritance of an individual’s properties are classified in two categories — testamentary succession and intestate succession. An individual is said to die intestate if he has not executed any will. In this case, the distribution and inheritance of this individual’s properties shall take place in accordance with the personal law which is applicable to him. In testamentary succession, the distribution and inheritance of an individual’s properties is carried out as per the terms stated in his/her will.
In India, testamentary succession is governed by Indian Succession Act, 1925 (Act). Part 6 of ACT lays down the law governing testamentary succession as applicable to Hindus, Buddhists, Sikhs and Jains. It is important to comply with certain crucial principles that ensure the validity of the will in the eyes of law. Who can execute a will? An individual may dispose of his property in any manner as he chooses; subject to the condition that such disposition conforms to prevalent laws and is not contrary to policies of the state. Further, he must be a major (ie above the age of 18 years), of sound mind and capable of exercising his own free will and judgement. Writing a will A will must be written in plain and clear language. A will can even be handwritten. If any portion of a will is unclear on who is to inherit what properties, courts may ascertain the intentions of the deceased from the context in which the words appear in his will. Executor and witnesses To avoid any disputes over inheritance, it is desirable to appoint an executor in one’s will. An executor essentially oversees the process of distribution of testator’s assets amongst his/her beneficiaries. One may appoint a trusted member of their family or a non-family member as an executor. Bequeathing assets If an individual is desirous of bequeathing one property to more than one beneficiary, he/she must specify the extent and nature of each beneficiary’s share clearly. Identifying and demarcating each beneficiary’s share in a property can help beneficiaries save on stamp duty on partition deed, if any, in the future. Execution of will The testator must execute and sign his will in the presence of at least two witnesses. These two witnesses must attest the will in the presence of the testator. A person who has been appointed as executor in a will is permitted to be a witness. Once the will is written, it may be read out to the testator so as to confirm that his/her intentions are accurately captured in the will. Once confirmed by the testator, thewill is to be signed by the testator and attested by the witnesses. Changing a previous will If an individual is desirous of amending certain portions of a will that has already been executed, he/she may write a codicil to the will. A codicil is a document that amends, rather than replaces, a previously executed will. It is important to bear in mind that a codicil should also conform to the same legal requirements as the original will (eg, signatures by testator and attested by witnesses). An individual can also completely revoke his/her earlier will and replace it with an entirely new will, any number of times. The will that was last executed by him/her shall supersede the previous will/s in entirety and shall be considered as such individual’s final will. Stamping and registration Under the Indian Stamp Act, 1899, no stamp duty is payable on a will. Thus, a will can even be executed on plain paper. Under the Indian Registration Act, 1908, it is not mandatory to register a will. Thus, even an unregistered will is a valid legal instrument if it has been properly executed. Nevertheless, it is preferable to register a will within one’s lifetime. The author is Senior Partner, ZEUS Law Associates, a corporate commercial law firm. One of its areas of specialisation is real estate transactional and litigation work.

1 Comment
  1. Vivek Raj 2 years ago

    Dear sir, My grandma having her own land property and wants to divide it among her 3 sons equally and also wants to give some portion of property to her one married daughter. But two brothers are not agree to give an inch of land to her sister. In this conflicted situation partition not taking place. One brother also want to take excess amount of land.

    My quection is-
    What type of deed she can made for partition in which co-shares signs not required?
    On that deed mutation will take place?

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