WHERE THERE’S A WILL, THERE’S A WAY

Understanding a Will

A Will is one of the most significant legal instruments of estate planning. It is defined under Section 2(h) of the Indian Succession Act, 1925 as: “the legal declaration of the intention of a testator with respect to his property, which he desires to take effect on or after his death.” [1]

In essence, a Will is a legal document by which the testator specifies how his or her estate is to be distributed after death. It ensures clarity, prevents disputes, and enforces the testator’s last intentions. The Hon’ble Supreme Court has consistently emphasized that a Will reflects the last wish of the testator, which must be respected in law. [2]

Why People Hesitate to Make a Will

Despite its importance, many individuals avoid preparing a Will due to:

• Cultural Beliefs: Seen as inauspicious, associated with death.

• Emotional Discomfort: Families hesitate to discuss mortality or inheritance.

• Misconceptions: Suggesting a Will may be wrongly viewed as greed or predicting death.

• Procrastination: Many delay, assuming ample time remains.

Such hesitation frequently results in family disputes, prolonged litigation, and unintended distribution of property. [3]

Why You Should Make a Will – The Six P’s

1. Power

A Will empowers you to exercise control over distribution of your estate after death. Without one, intestacy laws apply. For Hindus, intestate succession is governed by the Hindu Succession Act, 1956. [4]

The consequences of intestacy can be severe, as witnessed in the Ambani family succession dispute following the death of Shri Dhirubhai Ambani in 2002, who passed away intestate.

2. Property

Individuals accumulate valuable movable and immovable assets— such as land, houses, shares, deposits, and jewellery. A Will ensures orderly distribution.

The maxim Ignorantia juris non excusat (ignorance of law is no excuse) reinforces that in the absence of a Will, intestacy provisions will prevail.

3. People

A Will allows you to choose beneficiaries and even disinherit individuals. In intestacy, however, a Hindu male’s estate is equally divided among sons, daughters, wife, and mother (all being Class I heirs). [5]

Courts have recognized testamentary freedom as an extension of one’s property rights. [6]

4. Peace

A Will provides peace of mind by enabling appointment of a guardian for minor children. This authority is recognized under Section 60 of the Indian Succession Act, 1925. [7]

Without such a clause, guardianship decisions fall to the court, which may not align with parental preference.5. Planning A Will is an essential element of estate planning. It consolidates assets and prevents wealth from lying unclaimed.

• In 2014, The Economic Times reported ₹64,000 crore of idle wealth lying unclaimed. [8]

• In 2019, it was reported that nearly ₹35,914 crore of unclaimed funds were lying with three financial regulators (RBI, SEBI, IRDAI). [9]

6. Protect A Will safeguards the financial interests of dependents. For instance, intestacy laws may require a widow to share her husband’s estate with children and his mother. [10]

The Supreme Court has reiterated that the primary object of a Will is to protect loved ones and avoid uncertainty. [11]

Conclusion

Life is uncertain and unpredictable. Drafting a Will allows you to plan consciously, protect your family, and prevent unnecessary disputes. Contrary to superstition, preparing a Will is not about anticipating death—it is about leaving behind a legacy of order, security, and love.

Authored by

Rahul Garg, Advocate
(B.Com, LL.B, LL.M)

Footnotes

[1] Section 2(h), Indian Succession Act, 1925.

[2] H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443.

[3] K. Laxmanan v. Thekkayil Padmini, (2009) 1 SCC 354.

[4] Sections 8–10, Hindu Succession Act, 1956 (as amended in 2005).

[5] Schedule, Class I Heirs, Hindu Succession Act, 1956.

[6] Gopal Swaroop v. Krishna Murari Mangal, (2010) 14 SCC 266.

[7] Section 60, Indian Succession Act, 1925.

[8] The Economic Times, “Unclaimed wealth in India crosses ₹64,000 crore” (2014).

[9] Data reported by financial regulators (RBI, SEBI, IRDAI), 2019.

[10] Section 8, Hindu Succession Act, 1956.

[11] Navneet Lal v. Gokul, AIR 1976 SC 794.

Disclaimer:

This article is intended for general informational purposes only. It does not constitute legal

advice and does not create an attorney–client relationship. Readers should seek professional

legal counsel before acting upon the information contained herein.