A Will is the quintessential document executed by a person to detail the manner of distribution of his/her estate amongst the desired beneficiaries after death. The primary goal for most persons executing Wills is to avoid disputes and bickering between legal heirs after their death. Incidentally, executing a Will also serves to provide legal heirs with a convenient consolidated list / ready reference of the deceased person's assets and liabilities. In our society, Wills are not executed frequently and are often mistaken to be solely the concern of the financially elite. However, in actuality legal disputes occur between surviving family members across all segments of society, regardless of socio-economic status. In metro cities especially, where real estate prices have sky-rocketed over the past decades, even the closest of families can find themselves bickering and fighting over the estate left behind by their deceased family member. Resultantly, the courts in most metropolitan cities in India are replete with family disputes over such estates. To give you an idea of the ground reality, it is not uncommon at all for cases instituted in the 1980s to still be pending before the High Court. Such litigation is not only time consuming, but very expensive, and also shatters the family bonds between the parties. It is not a surprise, therefore, that most people would like to avoid any dispute whatsoever between their legal heirs once they are gone.
Before I get to the utility of Wills in avoiding such disputes, it’s important to understand the existing legal framework with relation to succession of property, and in particular what happens when a person dies without leaving behind a Will. In India, there is no uniform civil code despite the mandate of Article 44 (Directive Principles) of the Constitution of India, and as of now, even after more than 60 years of the Constitution coming into force, personal law is governed by Religion inasmuch as different Acts apply to persons belonging to different religions. For the purpose of brevity, the scope of this article is limited to a brief overview of the prevailing law applicable to Hindu persons in India.
(Please do note that the intricacies of Hindu Law and in particular the history and law relating to Joint Family property can be vast and complex and some simplification has been unavoidable in the writing of this article)
WHO IS A HINDU? LEGALLY SPEAKING, THAT IS.
Broadly, the legal definition of a Hindu Person in India is a person who is Hindu, Buddhist, Jain, or Sikh by religion; or rather anyone who is not Muslim, Christian, Parsi or Jewish by religion. On a side-note, the second limb of this definition is curious inasmuch as it theoretically acts as a residual clause encompassing anyone not belonging to the latter four religions, and deeming such persons “Hindu” at least as far as the applicability of the specific acts are concerned. Such a definition would therefore include people belonging to any other religion like Scientology, Zoroastrianism, Rastafari, Pastafarianism and even Agnostics and Atheists. The desirability of such an all-inclusive definition for what constitutes being “Hindu” in India merits a separate discussion, possibly in a future article.
WHAT HAPPENS IF YOU DON’T EXECUTE A WILL?
When a Hindu person dies intestate (i.e without leaving behind a Will), the devolution of his/her estate is carried out in accordance with the provisions of the Hindu Succession Act, 1956. In this regard, an extremely important distinction drawn in law is between joint family property (also commonly known as HUF property) and self-acquired property.
WHAT IS JOINT FAMILY / ANCESTRAL /HINDU UNDIVIDED FAMILY / CO-PARCENARY PROPERTY?
The concept of joint family property stems from Hinduism, where traditionally the primary unit of society was the extended family and not the individual. In keeping with this ethos, property was owned in a common pool with many generations and limbs of the family living together, working together, sharing a kitchen, place of worship, household expenses etc. While ownership of joint family property is common and in equal proportion, traditionally for administrative convenience, the eldest male member of the family (called Karta) would take care of the financial and administrative needs of the entire property.
While assessing whether a property is joint family or not, generally as a rule of thumb there are three ways of a property becoming a joint family property:
- If the property has devolved upon a person through a lineal ancestor at least 3 generations above him/her; or
- If a property is purchased from joint family funds (i.e. funds raised from a joint family business or sale of joint family property / assets); or
- If a person wishes to assign his own (self-acquired) property into the common pool of his family, such as to treat it as joint family property.
While traditionally the ownership of joint family property was solely in the hands of male members of a joint family, as of an amendment as late as in 2005, equal rights have now been given to daughters and to sons. Moreover, while earlier joint family would devolve upon legal heirs as per what was called "survivorship," the 2005 amendment has now made the rules of intestate succession (see below) also applicable to joint family property.
What needs to be kept in mind is that a person can only make a Will with regard to joint family property to the extent of his/her own personal share, and nothing more. For example, if a joint family consists of three brothers, each brother has a 1/3rd interest in the joint family property by birth, and can only make a Will to the extent of that 1/3rd notional share, and cannot infringe upon the remaining 2/3rd that is not his share.
A much simpler concept, self-acquired property is self-explanatory inasmuch as it is property that is not joint family property and which may have been acquired through a number of avenues, such as through a person's own funds, or through a gift / sale / transfer etc.
WHAT HAPPENS IN CASE A PERSON DOES NOT LEAVE A WILL? (INTESTATE SUCCESSION)
The Hindu Succession Act provides for classification of legal heirs in different Classes, specifically in Class I & Class II Legal heirs as detailed below:
HEIRS IN CLASS I AND CLASS II
Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a predeceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a predeceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son.
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter.
V. Father’s father; father’s mother.
VI. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother’s sister.
Explanation: In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood.
To summarize the above, the act provides that in case a deceased Hindu male has Class I legal heirs, then only the Class I legal heirs would be entitled to (equal) shares in the person’s estate. In the event that there are no Class I legal heirs, then any and all Class II legal heirs would get (equal) shares in the estate. Should there be no Class II legal heirs either, then it would devolves upon agnates and in the absence of agnates, upon the cognates of the deceased person. If the deceased person does not have any agnates or cognates either, then the deceased person’s estate devolves upon the Government. (For details on priority of succession please refer to Sections 8 to 13 of the Act).
It may, however, be noted that when it comes to Female Hindus the law differs slightly and would be in terms of the following sections:
15. General rules of succession in the case of female Hindus
(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16:
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1)-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs.
16. Order of succession and manner of distribution among heirs of a female Hindu. -
The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate property among those heirs shall take place according to the following rules, namely:-
Rule 1 .- Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously.
Rule 2.- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate’ death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death.
Rule 3.—The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.
While the above may seem daunting, when simplified the rules of intestate succession largely follow what an average person would deem ‘common sense’ inasmuch as the broad principle is that the estate of the deceased person is to be divided amongst his/her closest family members equally. However, some may consider the law of succession applying to Hindu females as being overly traditional or patriarchal.
SO WHY HAVE A WILL AT ALL? (TESTAMENTARY SUCCESSION)
A Will allows a person to have almost full freedom to do what the person may wish to do with his/her estate after death. It is a unique instrument inasmuch as it only comes into operation when a person deceases, but allows such person to dictate the terms of his/her bequest much earlier. A Will may be executed many many years before a person may anticipate it would be required, and in fact it is highly recommended to execute it at a stage where the executor is in good health - physically and mentally.
It flows from the above discussion of intestate succession that if a person’s intention is that all his/her property and assets should devolve upon his/her closest heirs equally, then a Will may not be wholly necessary. However, the following is a (non-exhaustive) list of some scenarios where creating a Will would become necessary:
- If you wish to divide your estate unequally, such as in the following situations:
- You wish to exclude someone partially or completely, perhaps because you do not enjoy a good relationship with such person, and would prefer to not bequeath anything to that person, or at least not have that person at parity with other heirs. E.g. A child who may have abandoned you in your old age, or an estranged spouse who is still legally married to you.
- You wish to favour one or more heirs over the others. This may be way of a special gesture to a child or spouse who looked after you in your old age, or by way of providing a little extra support to a child who did not enjoy the same financial success in life as your other children.
- If you wish to demarcate the exact distribution of your estate.
- Take the simple example of a Hindu man who has two children only as his heirs and his estate is limited to a two-storeyed house. By default, in the case of intestate succession, both children would have equal but undivided ownership in both floors of his house. This can often lead to bickering over which floor should belong to who, especially since market value can differ significantly for two floors even in the same building. Moreover other factors such as personal preference can also complicate the issue. Anticipating such a scenario, the father may deem it to be preferable to specify which floor goes to which child in order to avoid any dispute after his death.
- Similarly, it may be your wish to give a specific property to one child and another specific property to another, perhaps on the basis of geographical proximity, sentimental reasons etc.
- If you wish to give any part or whole of your estate to a third person (such as a friend) or to Charity.
- If you wish to form a Trust. While the utility of a trust created through a Will is a matter for a lengthier and separate article, suffice it to say that some persons prefer to form a trust through a Will in situations where for instance they want their children to be provided for throughout their tender years, but enjoy full powers of their bequest (such as the power to sell property) only upon arriving at a certain age. In such a situation, setting up a trust by a Will allows the person to specify that till the time that the children achieved the stipulated age, who is to maintain the property for their benefit, what kind of monthly emoluments are to be given to the children etc. etc.. It allows the person to also set the exact terms and conditions of the running of such trust. While a trust for a similar purpose can also be created in the lifetime of a person, many prefer creating the trust through their Will, as the latter can significantly save cost otherwise incurred by way of stamp duty.
- You wish to ensure that no third party initiates a legal dispute against your family. There are cases in the courts where a previously unknown person has claimed a share in the property of a deceased person on various grounds such as by alleging that he/she is an adopted child of the deceased, or is an illegitimate child of the deceased, or despite being a rank stranger was the person who took care of the deceased person in his/her last few years of life. To avoid such scenarios, a Will can be invaluable to authoritatively declare who the beneficiaries of your Will are, and thereby exclude the possibility of a dispute by a third party completely.
- If you are a Hindu female, and wish to differ from the default rules of succession as per Sections 15 and 16 of the Act.
IN A NUTSHELL
If your intention is to leave everything equally to your closest legal heirs without demarcating who gets what, then you may avoid executing a Will completely. However, some would argue that even in such a situation it may be highly recommended to execute a Will, so as to avoid any of the pitfalls illustrated above such as a third party claiming a right in your estate after your death. Moreover, a lot of people find Wills to be a practical solution to provide a ready reference of the details of the executor's entire estate. This is important as it is not uncommon for a person’s heirs to not be aware of the entire estate, especially when it comes to bank accounts, shares and other investments that the person may hold.
The single biggest advantage of executing a Will is unarguably to prevent disputes between legal heirs and to facilitate and ease the devolution of the deceased person’s properties and assets to the beneficiaries. While even a Will written on a plain paper is valid so long as it is attested by two witnesses, there are many pitfalls that need to be avoided. Registration is also highly recommended as a registered Will is generally considered to have a much higher evidentiary value in case of any litigation. Callous drafting of a Will may, however, be counter-productive and may open up the scope of bickering amongst your loved ones. Typically legal disputes pertaining to Wills can take even as long as a few decades to be adjudicated in courts of law. It is therefore always recommended that you consult a competent Advocate of your choice to assist you in this process.