1. II NAMASTE Preparation of Will and Documentation in relation to HUF Conceived & presented by: Avadhoot V. Sumant Advocates The SatyaNitee and Company, Advocates and Consultants, 003, Rajmandir Apartments, 62, Alkapuri Society, R.C.Dutt Road Vadodara-39007 Tel: +91-235-2324828-9; +91-7878511234 mail:- info@thesatyavidhi.com

2. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 2 The concept, preparation & execution of WILL THE CONCEPT IS CREATURE OF COMMON LAW which regulates the sucession in terms of the testament. The Control is by Indian Succession Act, 1925 The form and frame is not important but serious in its implication Therefore the natural process of writing being recogised as Holograph Will is more respected Hence be an advisor and allow the testator to be an author.

3. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 3 What is a will Will means the legal written declaration of the intention of a person with respect to his property and its distribution, which he desires to effectuate after the death of the person making it. It can be revoked or altered by the maker of it at any time and hence only the WILL which is last in time is enforceable. the person can distribute and bequeath the property which belongs to him and nothing else. Will is a wide concept covered by the Indian Succession Act, 1925 A person can give only his share in the ancestral property in the form of a Will and he can make a Will also of his Self- Acquired property. A Will does not involve any transfer, nor affect any transfer inter-vivos, but it is an expression of a wish and instructions to bequeth and give the properties to the specified person / body upon the death of testator and thereby maybe an appointmetn of executor.

4. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 4 Enactment and its Applicability The Indian Succession Act, 1925 provides for exhaustive/ comprehensive provision for testamentary succession. The Act is applicable to all the citizen of Bharat except the community i.e. the Muslims – Reference Section 57- Poses a question to “Secularism” The negation/ prohibition in Section 58 making the act in applicable to Mohamedan demands debate.

5. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 5 Statutory Definition of ‘Will’: The term ‘Will’ is defined under ‘Section 2(h)’ of The “Indian Succession Act, 1925”, 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. A testator is authorized with a power to appoint any person as beneficiary of his Will whereas ‘Section: 5’ deals with the law regulating succession to deceased persons depending upon his domicile at the time of his death moveable and immovable property

6. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 6 Meaning of ‘will’: A Will or testament is a legal declaration by which a person, the testator, names one or more persons to be given/ bequeathed with and transfer the property upon his death. A Will can be made by anyone who is a major. A Will is a statement made by a testator in the written form stating the manner in which his estate/property must be distributed after his death. A Will being a testamentary document comes into effect after the death of the testator and if the person dies without making any Will then he is said to have died intestate which will make his personal law applicable to succession. The person in whose favour the testator bestows the benefits called beneficiary or legatee. A Will is also called as Testament.

7. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 7 Features of A Valid ‘Will’: There are certain characteristics which should be included in the instrument of will such as :- The Name of The Testator: The name of the testator should be mentioned accurately without any error in initials, spelling or grammatical mistake so that it will not affect the instrument of Will. Right To name the Legatee: The testator is having absolute right to decide and make any person as a legatee or beneficiary of a Will and the testator should execute the Will carefully and in accordance with the law. To Take Effect After Death : A testator is to make the Will during his lifetime, but it will take effect only after his death. Therefore the WILL is a document which works and speaks for the testator beyond his life hence proper care is required to reflect the true intention of the testator.

8. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 8 Revocation and amendments: In general a Will made by the testator can be revoked at any time during his lifetime and testator can modify, alter and amend the previous Will by making new WILL with reference to either property or person. There may be chances where a testator wishes to bring some alterations in the Will then he can make some necessary amendments in the already prepared Will which is called as Codicil. However instead of codicil the fresh will is more advisable to achieve integrity and harmony in the purpose behind either WILL or codicil. Intention of The Testator is supreme : importance of wording of WILL not necessary to use any technical word, circumstances become relevant to determine the subject and object of WILL. The whole WILL should be collectively used for interpretation. The understanding of words and construction thereof. uncertainty can be destructive, different types of bequest and construction of terms used in the WILL and concept of residuary legatee. Void Bequests: Bequest to person not existing is void, rule against perpetuity means bequest delayed beyond the life of one or more person at the time of testator’s death. Direction to accumulate the income beyong period of 18 years is void expet for the dates or for the benfit of the children or maintenance of property. No bequest to religious or charitabkle institute is valid excpet when the ewill is executed atleast 12 months before the death and also deposisted with the loegal custodian.

9. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 9 Types of WILL Privileged Will: As it can be understood from the word privilege provided to certain person. A privileged will is one which is made by any soldier, airman, navy person, mariner only nad during/ at the time the war or expedition are willing to dispose of their estate during the course of their employment. Unprivileged WILL: Will executed according to the provisions of Section 63 of the “ Indian Succession Act, 1925” are called unprivileged WILL. An unprivileged WILL is one which is created by every testator who has to sign and affix his mark on the Will and shall have to be signed in presence of two witnesses ands witnesses sign to witness the execution of will under his direction. The manner and mode of putting signature should confirm he intention and though there if no form for attestation it is mandatory to have two or more witnesses who must see the testator putting his sign or mark on the WILL. There can be documents incorporated by reference in WILL

10. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 10 Who Can Make A Will S.59 of Indian Succession Act provides that every person who is of sound mind and is not a minor can make a Will. Persons Disqualified to make WILL- Deaf and Dumb who are unable to know what they do Insane Ill or intoxicate person who do es not know what he is doing U/s. 59 of Act, the existence of a sound mind is a sine quo non for the validity of the Will. A sound disposing mind implies sufficient capacity to deal with and understand the disposition of property in his Will - 1.the testator must understand that he is giving away his property to one or more persons. 2.he must understand and recollect the extent of his property. 3.he must also understand the persons and the extent of claims included as well as those who are excluded from the Will.

11. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 11 General Procedure To Make A ‘Will’: A ‘Will’ should be prepared with utmost care and must contain several parts to make a complete Will though there is no defined format for making a Will but a general procedure should be adopted while writing a Will by the testator which includes: Declaration In The Beginning : In the first paragraph, person who is making a Will, has to declare that he is making this Will in his full senses and free from any kind of pressure and undue influence and he has to clearly mention his full name, address, age, etc at the time of writing the Will. Details of Property and Documents : The next step is to provide list of items with full description, like house, land, bank fixed deposits, postal investments, mutual funds, share certificates owned by testator. He must also state the place where he has kept all the documents if the will documents are under safe custody of the bank then testator has to write details about the releasing of the documents from the bank. Here it is the most important duty of the testator to communicate the above matter to the executor of the Will or any other family members, which will make the Will valid after testator death.

12. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 12 General Procedure To Make A ‘Will’: Details of ownership by the testator: A testator while making a original will should specifically mention hat who should own his entire property or assets so that it will not affect interest of the successors after his death. If testator wishes the name of the minor as beneficiary then a custodian of the property should e appointed to manage the property Attestation to the will : At the end, once the testator complete writing his Will, he must sign the will very carefully in presence of the witnesses who shall sign after his signature certifying that the testator has signed the Will in their presence. Implementation of the Will : On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate. The court will ask the other hers of the deceased of they have any objection of the WILL. The probate is the copy of the Will certified by the Court. the process to grant the probate is regulated by the procedural steps envisaged by section 218 to 263 which can include the grant of probate of the last WILL and also revocation of the same. However probate is not compulsory to be obtained in case of all the WILLS.

13. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 13 Registration of ‘Wills’: According to the Section: 18 of the ‘Registration Act, 1908’ the registration of a Will is not compulsory. Once a Will is registered, it is a strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after. The process of registration begins when a Will instrument is deposited to the registrar or sub-registrar of jurisdictional area by the testator himself or his authorized agent. Once the scrutiny of Will instrument is done by the registrar and registrar is satisfied with all the documents then registrar will make the entry in the Register-Book by writing year, month, day and hour of such presentation of the document and will issue a certified copy to the testator. In case if registrar refuses to order Will to be registered then testator himself or his authorized agent can institute a civil suit in a court of law and court will pass decree of registration of Will if court is satisfied with the evidence produced by the plaintiff. A suit can only be filed within 30 days after the refusal of registration by the registrar. If the testator willing to withdraw the Will after the process of registration then a sufficient reason has to be given to registrar, if satisfied he will order for the registration of Will.

14. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 14 What is HUF The meaning of Hindu Undivided family is envisaged by the tenates and principles of Hindu law. According to Hindu law, it is a family that consists of persons lineally descended from a common ancestor. HUF consists of father, sons and daughters and wife. A HUF is a separate entity for taxation under the provisions of S.2 (31) of the Income Tax Act, 1961. This is in addition to an individual as a separate taxable entity. This indicates that a person may be assessed in two different capacities- as an individual and as a Karta of his HUF. Basic criteria for an HUF There are some essential conditions that must be fulfilled to qualify as an HUF. These are outlined below: Only one member or coparcener cannot form an HUF; The joint family continues even in the hands of females after the death of the sole male member; An HUF need not consist of two male members. One male member is enough. For example, a father and his unmarried daughters may form and HUF.

15. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 15 The Hindu Succession (Amendment) Act, 2005 (39 of 2005) came into force from 9th September, 2005. The Government of India has issued notification to this effect. The Hindu Succession (Amendment) Act is to remove gender discriminatory provisions in the Hindu Succession Act, 1956 and gives the following rights to daughters under Section 6: The daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son; The daughter has the same rights in the coparcenary property as she would have had if she had been a son; The daughter shall be subject to the same liability in the said coparcenary property as that of a son; and any reference to a Hindu Mitakshara coparceners shall be deemed to include a reference to a daughter of a coparcener; The daughter is allotted the same share as is allotted to a son; The share of the pre-deceased son or a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased son or of such pre- deceased daughter; The share of the pre-deceased child of a pre-deceased son or of a pre- deceased daughter shall be allotted to the child of such pre-

16. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 16 Hindu Undivided Family The HUF is a creature of law, however the concept and identity can be supported / confirmed by a formal document on a stamp paper stating the names of the Karta and the co-parcenrs (members) of the HUF. The eldest male member of the HUF becomes the karta of the HUF. A declaration is also provided by each member of the family where they declare the name of the karta and also state that: 1.Karta has the authority of the accounts vested in his hands 2.That the members of the family are the only members of the HUF 3.The Karta holds the right to govern all the transactions of the HUF account on behalf of the members The names of the members of the HUF and also the Karta of the HUF can be identified from the formal document or alternatively from the fiscal document concerning Income Tax to identify the details of the members of HUF. Example- if the name of the karta is Suresh Kumar, then the HUF will be named as Suresh Kumar HUF.

17. Session Topic:- Will and Documentation related to HUF Presentation Slide No. 17 Family Arrangement is an informal concept known primarily to Hindus and sometimes it is oral and also written. AIR 1995 SC1725 rules partition is not required to be registered and even a family arrangement is sufficient to effect partition Family arrangement can be confirmed or corroborated by conduct and circumstances of parties Family arrangement can also be respected from the mutation entries from revenue record However, section 6 (5) and its explanation of Hindu Succession Act makes it compulsory to have the deed of partition duly registered.

18. DHANYAWAD For further thought sharing as regards today’s deliberation SMS: +91-9824061397 Email: avs@thesatyavidhi.comavs@thesatyavidhi.com