Inheritance & Wills
Most people in Kolkata and Mumbai don't make wills. They assume family will sort things out after death. They feel uncomfortable contemplating death. They believe their intentions are obvious so documentation isn't necessary. They think making a will is complicated or expensive. This creates predictable problems. After death, family members dispute what the deceased would have wanted. Legal heirs under succession law might not align with the deceased's actual wishes. Property gets stuck in succession disputes for years while multiple claimants assert rights. The cost of this family conflict and legal uncertainty far exceeds what it would have cost to execute a proper will during the deceased's lifetime. But convincing people to make wills before they face terminal illness or extreme old age is difficult.
Will drafting looks deceptively simple. Write down who should get what property, sign it, get it witnessed. The Indian Succession Act doesn't require wills to be registered or notarized in most cases. But poorly drafted wills create more problems than they solve. Ambiguous language leads to disputes about what the testator intended. Property descriptions are insufficient to identify what's being bequeathed. The will doesn't account for property acquired after execution. Multiple wills exist and it's unclear which is latest. The will wasn't executed properly—insufficient witnesses, testator's signature in wrong place, witnesses didn't see testator sign. These technical defects lead to will contests after death when the testator can't clarify intentions. Proper will drafting requires precision, completeness, and attention to execution formalities that most people drafting their own wills don't achieve.
Will contests typically allege either lack of testamentary capacity or undue influence. The challenger claims the testator didn't understand what they were doing when executing the will, or was coerced or manipulated into making the will. These cases turn on evidence about the testator's mental state and relationships at the time of will execution. The testator is dead and can't testify. The will's beneficiaries want it upheld. The challengers want it set aside so intestate succession or an earlier will applies. Courts must decide based on testimony from interested parties, medical evidence about the testator's mental condition, and circumstantial evidence about who had influence over the testator. Many will contests could have been prevented through proper will execution with independent witnesses and documentation of testamentary capacity.
Intestate succession creates outcomes that often don't match what the deceased would have wanted. Under Hindu law, if a Hindu male dies intestate, his property gets divided among Class I heirs following statutory rules. This might result in distribution very different from what the deceased intended. A childless Hindu man's property might go to his mother and siblings rather than his wife if he dies without a will. A Hindu woman's property divides between her husband's heirs and her parents' heirs in specified shares. These statutory distributions made sense historically but don't necessarily reflect modern family structures or relationships. Making a will allows people to override intestate succession and ensure property goes to intended beneficiaries.
Probate proceedings are required for proving wills when property includes immovable property in certain jurisdictions or when financial institutions or property registrars demand probate before recognizing will executors. The executor named in the will applies for probate from the court. Potential heirs get notice and can object. If no valid objections are raised, the court grants probate confirming the will's validity. With probate, the executor can administer the estate and transfer property according to the will's terms. Without probate, executors face challenges getting property transferred or realizing assets. Probate proceedings in India are slow, sometimes taking years if contested. This delay keeps estate assets locked while heirs wait for probate.
Succession certificates provide an alternative to probate for proving succession when no will exists or for realizing movable assets. Heirs apply for a succession certificate from the court. The certificate confirms who the legal heirs are and authorizes them to realize the deceased's debts and securities. Banks and financial institutions accept succession certificates for transferring accounts. Like probate, succession certificate proceedings involve notice to potential heirs and opportunity to object. The process takes months or years if contested. The need for succession certificates or probate creates friction in realizing inheritances, which is why proper will planning including appropriate execution and asset nomination can simplify succession.
Nominations in bank accounts, insurance policies, and securities are sometimes confused with testamentary dispositions. A nomination tells the bank or institution who should receive the asset after the account holder's death. But nomination doesn't override the nominee's obligation to hold the asset for the actual legal heirs. A person who nominates their son for a bank account hasn't bequeathed that money to the son through the nomination. The son receives the money from the bank but holds it in trust for all legal heirs under succession law unless a will specifies otherwise. Many people don't understand this distinction and treat nominations as estate planning when they're actually just convenience mechanisms for asset transfer. Proper estate planning requires both nominations for smooth transfer and wills for actual distribution according to the deceased's wishes.
Partition during lifetime provides an alternative to succession planning through wills. Joint families or parents can execute partition deeds dividing property among family members during lifetime. This avoids succession disputes after death since property has already been distributed. But partition deeds create their own risks. Partitions can be challenged as fraudulent or procured through undue influence. Property values might change significantly after partition, creating claims of unfair division. Partitions might not account for future acquisitions. Relations between family members might change after partition, creating regret about the division. Nevertheless, in some family situations, partition during lifetime with clear documentation resolves succession issues more effectively than waiting for succession after death.
Complex family structures create succession complications. Blended families with children from multiple marriages, adopted children, children born out of wedlock, and same-sex relationships all raise succession issues that traditional succession law doesn't address clearly. Second wives might have succession rights that conflict with children from first marriage. Adopted children have rights equal to biological children under law but families sometimes don't accept this emotionally. Illegitimate children under older Hindu law had limited rights but amendments have provided equal rights. Same-sex partners don't have legal succession rights since marriage isn't recognized. These situations require careful will planning to address complications that intestate succession law handles poorly.
Tax planning intersects with succession planning in ways people often ignore. Inherited property doesn't create income tax liability for heirs but can create capital gains tax liability when subsequently sold. Estate duty was abolished in India but could be reintroduced. Gifts during lifetime face tax implications different from inheritance. Trusts can be used for succession planning but create their own tax and regulatory complexities. Proper inheritance planning should consider tax implications of different approaches to transferring wealth across generations. Most people focus on who gets what and ignore how the transfer affects tax liability. This oversight can significantly reduce the value heirs actually receive.
What separates effective inheritance and will practice from basic document drafting is understanding that succession planning is ultimately about transferring wealth efficiently while minimizing family conflict. The legal documents are necessary tools. But outcomes depend on understanding family dynamics, anticipating potential disputes, structuring transfers to align with family realities, and often facilitating difficult family conversations about death and money. A lawyer who simply drafts a will according to client instructions might produce a legally valid document that creates family warfare after death. A lawyer who understands the family context and potential conflicts can structure succession planning that minimizes disputes. Inheritance and wills practice should be preventive law—preventing future conflict through proper planning. Too often it's reactive law—resolving conflicts after someone died without proper planning.
