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Contemporary challenges regarding Will

Will is very important and wide concept under the succession. A person's physical body will destroy due to the death of that person but that person's rights or liability will not come to end. That person is a legal personality after the death. He will be a legal personality through his heirs or legal representative. People earn the property through their hard work. They have taken so many years to earn the property. People use their property for their benefit. But it is obvious that he will die someday. People wishes that after the death, whatever the property they have, it will divide between his family without any dispute and problem. For that purpose people has to make a will during the time when he is alive.

Through the will he is ensure that his property will distribute according to his wish after the death of that person. If people wishes that their children will not have fight with each other, government will not take away the property through tax, property will not go to the person who is not reside with him, family dispute will not take place in court than that person has to make a will. Many of the disputes occur related to the money, land and property. To make a will is very important if people do not want to do partition and family disputes.

Due to lack of the will people has to go to the court and has to tell the things in the public that they do not want to tell in public. Currently, more than 2.2 crore property-related cases are pending before all courts in India. The average time taken by the Hon'ble Supreme Court to resolve land acquisition disputes is 20 years.[1]

So, it is a better option that a person makes a will before he die. Basically, Will means wish. Will means deceased person's last wish. In legal term will is define under section 2(h) of the interpretation clause of Indian Succession Act, 1925, which states that, will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.[2] Will is governed under section 57 to 191 (Chapter VI- Testamentary succession) of The Indian succession act, 1925.

If a Hindu person died without make a will then that property will divided to the legal heirs under the Hindu succession act, 1956. Section 59 of the Indian succession act, 1925 deals with the capacity of the person to make a will. It states that:
Every person of sound mind not being a minor may dispose of his property by will.

[3] A person who makes the will is called testator. A will is a legal declaration of the distribution of the property of the deceased person. If the deceased person written his will on small piece of paper and sign it than also it is considered as a valid legal declaration. There are some conditions for a valid legal will.

The conditions are following:
  1. The testator makes the will voluntarily. He cannot make a will under any force, coercion, undue influence and fraud.
  2. Testator has complete knowledge about making the will.[4]

If the testator makes the will under any fraud, force or undue influence than that will is illegal. Section 2(b) of The Indian succession act, 1925 define codicil which states that, codicil means an  instrument made in relation to a will, and explaining, altering  or  adding  to  its dispositions, and  shall be  deemed to form part of the will.[5] A will can be changed by the testator at any time before he die. A will can be revoked at any time by testator.

In the present scenario land disputes will take too long time to solve the cases in the court. It is already mentioned that there is so many property related cases pending before all courts in India. If a person files a suit for the property but the court delivered the judgement after 20 years and that petitioner died than what is the meaning of filing the case if that person does not exist at the time of decision of the court. Coin has two sides. As per my opinion, Will has also two impacts: Positive as well as negative.

As been already mentioned that if a person can't make a will than the property will divide as per the Hindu succession act, 1954. According to Hindu Succession Act, 1954, property has go to the people who is not so close with the deceased person, even the people who does not reside with him or feed that person than also they get the property. So, it may better to make a will so that people do not go to the court. But even also people can write a will, some people can challenge this in the court of law.

For example, A has three sons and subsequently out of the affection, A delivered his all the property to only one son even A is residing with the second son. If the person can make a will without free consent than also will is illegal. When we talk about the motive and intention, if a person gives his all property in charity even after his 5 children are exists and all they are respected their father a lot, it is morally wrong that a person gives his all property in charity.

A has two children (P and Q). His two children did the partition in 2010. A resided with P and Q never takes care of his father and never asked about his health, need and all. A can make a will and give his all property to Q. P challenge this will in the court. So, it is clear that it is legally right but morally wrong. This is not fair with son P. This same situation occurs in the court so many times. But will is a legal document and it can never be challenge in the court unless it is made without free consent.

It is a fact that everybody is concern about their children.

But not every child is thinking same for their parents. The classic example related to this situation is Dr. Vijaypat Singhania and his son Gautam Singhania. Dr. Vijaypat Singhania is founder of Raymond group of company. The ultra-success behind the Raymond is only Dr. Vijaypat Singhania. He run the company as a single handed and made his company one of the top brand companies. After this he handed over all his property to his son Gautam Singhania. After receiving the whole property and the Raymond Company, problems were occurred between father and his son.

In media, Dr Vijaypat Singhania says he has never been approached by his son in the past two years.[6] Gautam Singhania did not even visit his father when he was in the New York for the heart surgery. Gautam Singhania did not even allow his daughters to visit their Grandfather. Dr. Vijaypat Singhania is right now living in the rent house at Mumbai.

The person who was the founder of the Raymond Company is right now living as a normal man in rented house. There is a difference between reel and real. Child like this never gets a property from his father. Dr. Vijaypat Singhania himself gave away all his property to his child so he cannot claim that property. I gave this example just because the inheritance law need some changes in the present. If Dr. Vijaypat Singhania can make a will than maybe there is no problem at all for them. Therefore, Will have also positive impact. If will can be made than also problem, will cannot make than also problem may occurred between family members.

The classic example for this situation is Dhirubhai Ambani and his sons (Reliance Industries). Dhirubhai Ambani died without make a will so property was divided between his widow, two sons and two daughters. He thought that his son will equally run the Reliance Company. After he died, both the son fought for the ownership of the Reliance Company. After taking the advises of the lawyers and so many meetings between them they settled between themselves. It would be better if Dhirubhai Ambani make a will before he died.

Wills under Muslim law is different from other religion. All religion's wills are governed under Indian Succession Act, 1925 except Muslim religion. A will of a Muslim person is governed as per their personal Muslim law. A person can give away his whole property under will which is governed by Indian Succession Act, 1925. But a Muslim person can only give away his 1/3 property under will. Other 2/3 property will go to his legal heirs.

But what if Muslim person want give his all property to one specific person?
Legal heirs of the Muslim may not live with him or not treat and respect the person as his family than also they got the property. Religious faith as a fundamental right guaranteed by the constitution of India. Religious law always include the family law. It basically means there is no uniform civil code exists in India for civil matters, even though it has been put into DPSP of the Indian Constitution. Succession laws are very complicated in India and also there is biasness among the different religions.

In the last I would like to suggest some points related to the topic. Firstly, even if people give away his property to anyone; it can be challenged in the court of law. Even the legally right will can be challenged in the court. I suggest that the every Hindu person can make a will before his/her death. Will is a better option to distribute the property. Succession laws need some changes in India because if they do not make a will than property goes to the legal heirs as per the Hindu succession act, 1956.

There are 16 people in the class-I heirs in the Hindu Succession Act, 1956. If he/she cannot make a will than those people get the property even if they do not live with that person or they even did not care about that person. In India, there is no need of registration of the will. If there is no registration than a great and smart lawyer may prove that will as an invalid will to inherit the property for their client. And more the property value, more he received the charges for the litigation. So, there can be a law related to registration of the will.

As we already know that religious laws are different from religion to religion. Uniform Civil Code is one of the best debatable topics in India in the field of law. India is a religious type of country. India is also known for their secularism in the world. People believe in different religion and have faith in it. So, one country one law is probably not possible in the country like India.

At one side Constitution of India guaranteed a fundamental right of equality in article 14 and at other side, there is biasness in the religious law in India. Why Muslim people cannot give their whole property through will if they owned the property alone with his hard-work. Personal law cannot be change or amend in India. Uniform Civil Code is a very good way to remove the religious law including the succession and inheritance law. It has been also mentioned above that there are so many pending cases in the court and the court takes average 20 years to solve the succession cases.

If a person challenged his father or grandfather's will in the court, after the 10 years of the suit that person died and the court solve the case in next 20 to 30 years than what is the meaning of challenging a will. Therefore the Judicial system need to done the work fast as soon as possible.

  2. Section 2(h) of The Indian Succession Act, 1925
  3. Section 59 of The Indian Succession Act, 1925
  4. Law of wills (Gujarati) by B.S.Pancholi
  5. Section 2(b) of The Indian Succession act, 1925.

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