Personal & Family Law

Why make a will

A will lets you decide who inherits your property instead of leaving it to the default rules of intestate succession. Wills in India are governed by the Indian Succession Act 1925 (which applies broadly; Muslims are governed by personal law, with limits on bequeathing more than one-third without heirs' consent).

What makes a will valid

Under s.63 of the Indian Succession Act, a valid will needs:

• A competent testator: of sound mind and not a minor, acting freely without coercion.
• Signature: signed (or marked) by the testator, or by someone in their presence and direction.
• Two witnesses: at least two witnesses must attest, each having seen the testator sign. A beneficiary should not be a witness, as a bequest to an attesting witness can be void.

Registration and the executor

Registration of a will is optional — an unregistered will is fully valid — but registering it (under the Registration Act) and storing it safely reduces later disputes about authenticity. You can revoke or replace a will any time; the latest valid will prevails, so date it clearly. Appoint an executor, the person who carries out the will, collects assets, pays debts and distributes legacies; name an alternate in case the first cannot act.

Practical guidance and common mistakes

List assets clearly, mention that earlier wills are revoked, and consider a residuary clause for anything not specifically mentioned. Lekha's Will template gives you a clean structure. Common mistakes: using a beneficiary (or their spouse) as a witness; leaving out a residuary clause so some assets fall into intestacy; not appointing an executor; and keeping the only copy somewhere no one can find it. A doctor's note on mental fitness helps for elderly testators whose capacity might later be questioned.

Takeaway: Two independent witnesses, a clearly dated signature and a named executor make a will hard to challenge — registration is optional but witnesses are not.

What "intestate" means

Dying intestate means dying without a valid will. The property then passes by statutory rules that differ by the deceased's religion — which is exactly why a will is worth making.

Hindus, Buddhists, Jains and Sikhs

The Hindu Succession Act 1956 applies. For a Hindu male dying intestate, property first goes to Class I heirs (s.8 and the Schedule) — including the widow, sons, daughters and mother — who share equally and simultaneously. If there are no Class I heirs, it passes to Class II heirs, then agnates, then cognates. The 2005 amendment made daughters coparceners by birth in ancestral property, with the same rights as sons. For a Hindu female, s.15 sets a different order, generally favouring her children and husband first.

Other communities

• Christians and Parsis: Governed by the Indian Succession Act 1925. For Christians, the widow typically takes one-third and the children two-thirds (with variations where there is no spouse or no lineal descendants).
• Muslims: Governed by Islamic personal law (Sharia), with fixed shares for specified heirs (sharers and residuaries); a person can will away only up to one-third without heirs' consent.
• Inter-faith or civil marriages under the Special Marriage Act are generally governed by the Indian Succession Act.

Practical guidance and common mistakes

Heirs usually need a legal heir certificate or a succession certificate (for debts and securities) to claim assets. Common mistakes: assuming a nominee (in a bank account or insurance) is the owner — a nominee merely holds in trust for the legal heirs; and assuming daughters are excluded, which the 2005 amendment corrected. Because these rules are rigid and community-specific, a simple Will almost always produces a fairer, smoother outcome than intestacy.

Takeaway: Intestate shares are fixed by religion and leave you no say — knowing the default order is useful, but writing a will is how you actually control it.

What a power of attorney does

A power of attorney (POA) is a written authority by which one person (the principal or donor) lets another (the agent or attorney) act on their behalf. It is governed by the Powers of Attorney Act 1882 and the agency provisions of the Indian Contract Act 1872.

General vs special (specific)

• General POA (GPA): Grants broad authority over a range of matters — managing property, operating bank accounts, signing documents. Powerful and therefore risky; give one only to someone fully trusted.
• Special / Specific POA: Limited to a defined task — selling one particular flat, appearing in one court matter, completing one registration. Safer because the authority ends when the task is done.

Registration and the property caveat

A POA generally needs notarisation. Crucially, after the Supreme Court's well-known ruling, a GPA cannot be used to transfer or convey immovable property — a "GPA sale" does not pass title; a proper sale or gift deed is required. Where a POA authorises dealings in immovable property, it should be registered under the Registration Act. If the principal is abroad, the POA can be executed before an Indian consulate and adjudicated for stamp duty in India.

Revocation

A POA can be revoked any time (unless it is expressly irrevocable and coupled with an interest). Revoke in writing, notify the agent and any third parties relying on it, and if the original was registered, register the revocation too. A POA automatically ends on the principal's death, insanity or insolvency.

Practical guidance and common mistakes

Prefer a specific POA scoped to the exact task and time. Lekha's Power of Attorney template helps you scope it tightly. Common mistakes: handing a stranger or distant acquaintance a sweeping GPA; using a GPA to "buy" property; and forgetting to register a property-related POA or its revocation, which keeps a stale authority alive in the public record.

Takeaway: Match the POA to the job — narrow and specific beats broad and general — register it when property is involved, and revoke it in writing the moment it is no longer needed.

What an affidavit is

An affidavit is a written statement of facts that the maker (the deponent) swears or affirms to be true, before an authority empowered to administer oaths under the Oaths Act 1969 — typically a notary, oath commissioner or magistrate. It is used for name changes, address proof, income declarations, gap certificates, lost-document declarations and court filings.

How to draft one

• Identify the deponent: full name, age, parentage and address, plus a statement that the contents are true to their knowledge.
• State facts, not arguments: in numbered paragraphs, in the first person.
• Verification clause: at the end, stating which paragraphs are true to personal knowledge and which to information and belief.
• Execution: signed by the deponent and attested by the notary/oath commissioner, often on stamp paper of the value your state prescribes.

Notarisation and evidentiary value

A self-declaration is a simple signed statement; an affidavit is the same statement sworn on oath, which carries more weight and exposes the maker to prosecution for a false statement. Under the Bharatiya Sakshya Adhiniyam 2023 (BSA, which replaced the Indian Evidence Act 1872), an affidavit is generally not "evidence" by itself unless the deponent is produced and can be cross-examined — but s.139 of the BSA provides that a person who gives evidence on affidavit may be called as a witness on its contents. So an affidavit proves a fact only if the maker can stand behind it.

Practical guidance and common mistakes

Use the correct stamp value, get it properly notarised, and keep the original. Lekha's Affidavit template covers the structure and verification clause. Common mistakes: putting opinions or legal arguments into an affidavit; an incomplete or generic verification clause; insufficient stamp duty; and forgetting that a false affidavit is a punishable offence.

Takeaway: An affidavit is facts on oath — keep it factual, get it sworn before the right authority, and remember its weight depends on the deponent being willing to back it up if questioned.

The Right to Information Act 2005

The RTI Act 2005 lets any citizen seek information held by a public authority. You file a written application (in English, Hindi or the local language) with the Public Information Officer (PIO) of the relevant department, paying a nominal fee (₹10 for the central government; states vary; BPL applicants are exempt).

Timelines and first appeal

• 30 days: The PIO must reply within 30 days (48 hours where life or liberty is involved) — s.7.
• First appeal: If you get no reply or an unsatisfactory one, file a first appeal within 30 days to the First Appellate Authority (an officer senior to the PIO) — s.19(1).
• Second appeal: Within 90 days, to the Central or State Information Commission — s.19(3), which can impose penalties on a defaulting PIO.

Frame questions specifically — ask for documents, file notings or dates, not vague opinions, since the Act covers existing "information" and does not require authorities to create answers.

Gift deeds: registration and stamp duty

A gift deed transfers property voluntarily and without consideration. For immovable property, a gift deed must be in writing, attested by two witnesses and compulsorily registered under s.123 of the Transfer of Property Act 1882 read with the Registration Act — an unregistered gift of immovable property passes no title. Acceptance by the donee during the donor's lifetime is essential.

Stamp duty varies by state and by relationship. Many states (e.g. Maharashtra, Karnataka) charge a sharply concessional stamp duty for gifts to close relatives — spouse, children, parents, siblings — while gifts to non-relatives attract the full rate, similar to a sale. Always check your state's current schedule.

Practical guidance and common mistakes

Use Lekha's RTI Application and Gift Deed templates. Common mistakes: missing the 30-day appeal window; asking the PIO to "explain" rather than provide records; and gifting property on plain paper without registration — which is legally void. Income-tax note: gifts from specified relatives are tax-exempt for the recipient, but large gifts from non-relatives can be taxable.

Takeaway: RTI works when your question is specific and you use the 30-day appeal ladder; a property gift works only when it is written, witnessed, registered and stamped at your state's correct relationship-based rate.