A Will is a solemn document by which a dead man entrusts to the living to the carrying out of his wishes. S. S.2(h) of Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death Will has been defined in Corpus Juris Secundum as A ‘Will’ is the legal declaration of a man’s intention, which he wills to be performed after his death, or an instrument by which a person makes a disposition of his property to take effect after his death.
Codicil: Codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will. The purpose of codicil is to make some small changes in the Will, which has already been executed. If the testator wants to change the names of the executors by adding some other names, or wants to change certain bequests by adding to the names of the legatees or subtracting some of them, a Codicil in addition to the Will can be made to do so. The codicil must be reduced to writing and has to be signed by the testator and attested by two witnesses. It is also the duty of the court to arrive at the intention of the testator by reading the Will and all the codicils.
Executor: An executor is appointed by the testator, as distinguished from an administrator who is appointed by the court. Where the Will confers the powers to collect the outstanding, pay debts and manage the properties, the person can be said to be appointed as an executor by implication.
Probate: Probate is an evidence of the appointment of the executor and unless revoked, is conclusive as to the power of the executor. The grant of probate to the executor however does not confer upon him any title to the property.
Letter of Administration: Letter of Administration is a certificate granted by the competent court to an administrator where there exists a Will authorizing him to administer the estate of the deceased in accordance with the Will. If the Will does not name any executor, an application can be filed in the court for grant of Letter of Administration for the property
Attestation of Will: Attesting means signing a document for the purpose of testifying the signature of the executants. Therefore an attesting witness signing before the executants has put his mark on the Will, cannot be said to be a valid attestation. It is necessary that both the witnesses must sign in the presence of the testator but it is not necessary that the testator have to sign in their presence. Further it is not necessary that both the witnesses have to sign at the same time. It is also not necessary that the attesting witnesses should know the contents of the Will.
Essential Features of a Will
A Will can be made at any time in the life of a person. A Will can be changed a number of times and there are no legal restrictions as to the number of times it can be changed. It can be withdrawn at anytime during the lifetime of the person making the Will. A Will has to be attested by two or more witnesses, each of who should have seen the testator signing the Will.
The essential features are:
1. Legal declaration: The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it. Further the declaration of intention must be with respect to the testator’s property It is a legal document, which has a binding force upon the family.
2. Disposition of property:In a Will, the testator bequeaths or leaves his property to the person or people he chooses to leave his assets/belongings. A Hindu person by way of his Will can bequeath all his property. However, a member of an undivided family cannot bequeath his coparcenery interest in the family property
3. Takes effect after death:The Will is enforceable only after the death of the testator
Under section 18 of the Registration Act the registration of a Will is not compulsory. Also, the SC in Narain Singh v. Kamla Devi has held that mere non-registration of the Will an inference cannot be drawn against the genuines of the Will. However it is advisable to register it as it provides strong legal evidence about the validity of the Will. Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen. It is to be released only to the testator himself or, after his death, to an authorized person who produces the Death Certificate
Since a testamentary disposition always speaks from the grave of the testator, the required standard of proof is very high. The initial burden of proof is always on the person who propounds the Will.
Kinds of Wills
Conditional Wills: A Will maybe made to take effect on happening of a condition. In Rajeshwar v. Sukhdeo the operation of the Will was postponed till after the death of the testator’s wife. However if it is ambiguous whether the testator intended to make a Will conditional, the language of the documents as well as the circumstances are to be taken into consideration.
Joint Wills: Two or more persons can make a joint Will. If the joint Will is joint and is intended to take effect after the death of bot
h, it will not be admitted to probate during the life time of either and are revocable at any time by either during the joint lives or after the death of the survivor.
Mutual Wills: Two or more persons may agree to make mutual Wills i.e. to confer on each other reciprocal benefits. In mutual Wills the testators confer benefit on each other but if the legatees and testators are distinct, it is not a mutual Will. Mutual Wills are also known as reciprocal Wills and its revocation is possible during the lifetime of either testator. But if a testator has obtained benefit then the claim against his property will lie. Where joint Will is a single document containing the Wills of two persons, mutual Wills are separate Wills of two persons.
Privileged Wills: Privileged Wills are a special category of Wills and other general Wills are known as unprivileged Wills. S.65 of ISA provides that a Will made by a soldier or a airman or a mariner, when he is in actual service and is engaged in actual warfare, would be a privileged Will. S.66 provides for the mode of making and rules for executing privileged Wills. Ss. 65 and 66 are special provisions applicable to privileged Wills whereas other sections relating to Wills are general provisions which will be supplementary to Sections 65 and 66 in case of privileged Wills.
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 Incapable Of Making A Will
Persons of Unsound Mind
U/s. 59 of ISA the existence of a sound mind is a sine quo non for the validity of the Will. Most of the Wills are not made by young persons who are fully fit but are made by persons who are aged and bed ridden Hence, law does not expect that the testator should be in a perfect state of health , or that he should be able to give complicated instructions as to how his property was to be distributed. 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 objects
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. In Swifen v. Swifen it was held that the testator must retain a degree of understanding to comprehend what he is doing, and have a volition or power of choice.
Minors: A minor who has not completed the age of 18 years is not capable of making Wills. The onus of proof on determining whether the person was a minor at the time of making a Will is on the person who has relied upon the Will. S.12 of the Indian Contract Act also provides that a minor is incompetent to contract.
Other Persons Incapable Of Making A Will
Explanation I to S.59 of ISA provides that a Hindu married woman is capable of disposing by Will only that property which she can alienate during her lifetime. Explanation II provides that the persons who are deaf, dumb or blind can prepare a Will if they are able to prove that they were aware of what they were doing. Explanation III provides for persons who are mentally ill and insane. However subsequent insanity does not make the Will invalid i.e. if a person makes a Will while he is of sound mind and then subsequently becomes insane the Will is valid and is not rendered invalid by subsequent insanity. Further a person of unsound mind can make a Will during his lucid interval. A Will made by a person who is intoxicated or is suffering from any other illness, which renders him incapable of knowing what he is doing, is invalid.
Though the burden of proof to prove that the Will was made out of free volition is on the person who propounds the Will , a Will that has been proved to be duly signed and attested Will be presumed to have been made by a person of sound mind, unless proved otherwise. Further, a bequest can be made to an infant, an idiot, a lunatic or other disqualified person as it is not necessary that the legatee should be capable of assenting it.
Revocability of Will
S.62 of the Indian Succession Act deals with the characteristic of a Will being revocable or altered anytime during the lifetime of the testator. S. 70 of ISA provides the manner in which it can be revoked
A mere intention to revoke is not an effective revocation. The revocation of the Will should be in writing and an express revocation clause would revoke all the prior Wills and codicils. If there is no express clause to the effect then the former Will would become invalid to the extent of its inconsistency with the latest Will, this is known as an implied revocation (however it should be shown that the differences are irreconcilable). However if there is no inconsistency between the Wills then they cannot be considered as two separate Wills but the two must be read together to indicate the testamentary intention of the testator.
Revocation can also be made in writing through declaring an intention to revoke and the writing must be signed by the testator and attested by two witnesses. The deed of revocation has to be executed in the same way as the Will itself.
The Will maybe burnt or torn by the testator or by some other person in his presence and by his direction with the intention of revoking the same. The burning of the Will must be actual and not symbolic. The burning must destroy the Will atleast to the extent of his entirety. Further the Will need not be torn into pieces. It would be sufficient if it is slightly torn with the intent of revocation.
The Will can be revoked expressly by another Will or codicil, by implied revocation, by some writing, by burning or tearing or by destroying otherwise. Cancellation of a Will by drawing lines across it is not a mode of revocation. Under the Hindu Law the Will is not revoked by marriage or by subsequent birth.
Alterations in Will
S.71 of ISA is applicable to alterations if they are made after the execution of the Will but not before it. The said section provides that any obliteration, interlineations or any other alteration in a Will made after its execution is inoperative unless the alteration is accompanied by the signatures of the testator and the attesting witnesses or it is accompanied by a memorandum signed by the testator and by the attesting witnesses at the end of the Will or some other part referring to the alterations. the alterations if executed as required by the section would be read as a part of the Will itself. However, if these requirements are not fulfilled then the alterations would be considered to be invalid and the probate will be issued omitting the alterations. The signatures of the testator and the attesting witnesses must be with regards to the alteration and must be in proximity of the alteration. Further they should be in the Will itself and not in a separate distinct paper. But if the obliteration is such that the words cannot be deciphered then the Will would be considered as destroyed to that extent.
Wording of The Will
S.74 of ISA provides that a Will maybe made in any form and in any language. No technical words need to be used in making a Will but if technical words are used it is presumed that they are in used in their legal sense unless the context indicates otherwise. Any want of technical words or accuracy in grammar is immaterial as long as the intention is clear.
Another general principle applied is that the Will is to be so read as to lead to a testacy and not intestacy i.e if two constructions are possible then the construction that avoids instestacy should be followed.
Further there is another principle, which says that the construction that postpones the vesting of legacy in the property disposed should be avoided. The intention of the testator should be decided after construing the Will as a whole and not the clauses in isolation. In Gnanambal Ammal v. T. Raju Aiyar the Supreme Court held that the cardinal maxim to be observed by the Court in construing a Will is the intention of the testator. This intention is primarily to be gathered from the language of the document, which is to be read as a whole.
The primary duty of the court is to determine the intention of the testator from the Will itself by reading of the Will. The SC in Bhura v Kashi Ram held that a construction which would advance the intention of the testator has be favoured and as far as possible effect is to be given to the testator’s intention unless it is contrary to law. The court should put itself in the armchair of the testator. In Navneet Lal v. Gokul & Ors the SC held that the court should consider the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use words in a particular sense. However it also held that these factors are merely an aid in ascertaining the intention of the testator. The Court cannot speculate what the testator might have intended to write. The Court can only interprete in accordance with the express or implied intention of the testator expressed in the Will. It cannot recreate or make a Will for the testator.
Execution of a Will
On the death of the testator, an executor of the Will (executor is the legal representative for all purposes of a deceased person and all the property of a testator vests in him. Whereas a trustee becomes a legal owner of the trust and his office and the property are blended together) or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court grants probate. A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. It is only after this that the Will comes into effect.
Signature of The Testator
S.63(a) of ISA provides that the testator shall sign or affix his mark. If the testator is unable to write his signature then he may execute the Will by a mark and by doing so his hand maybe guided by another person. In another words a thumb impression has been held as valid.
Restrictions on A Will
1. Transfer to unborn persons is invalid
Where a bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who answers that description, the bequest is void. S.113 of Indian Succession Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has to be created in another person and the bequest must comprise of whole of the remaining interest of the testator. In Sopher v. Administrator-General of Bengal a grandfather made the bequest to his grandson who was yet to be born, by creating a prior interest in his son and daughter in law. The Court upheld the transfer to an unborn person and the Court held that since the vested interest was transferred when the grandsons were born and only the enjoyment of possession was postponed till they achieved the age of twenty one the transfer was held to be valid.
In Girish Dutt v. Datadin , the Will stated that the property was to be transferred to a female descendant (who was unborn) only if the person did not have any male descendant. The Court held that since the transfer of property was dependent on the condition that there has to be no male descendant, the transfer of interest was limited and not absolute and thereby the transfer was void. For a transfer to a unborn person to be held valid, absolute interest needs to be transferred and it cannot be a limited interest.
2.Transfer made to create perpetuity
S.114 of the Indian Succession Act, 1925 provides that no bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator’s death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.
The rule against perpetuity provides that the property cannot be tied for an indefinite period. The property cannot be transferred in an unending way. The rule is based on the considerations of public policy since property cannot be made inalienable unless it is in the interest of the community. The rule against perpetuity invalidates any bequest which delays vesting beyond the life or lives-in-being and the minority of the donee who must be living at the close of the last life. Hence property can be transferred to a unborn person who has to be born at the expiration of the interest created and the maximum permissible remoteness is of 18 years i.e the age of minority in India.
In Stanely v. Leigh it was laid down that for the rule of perpetuity to be not applicable there has to be 1)a transfer 2)an interest in an unborn person must be created 3)takes effect after the life time of one or more persons and during his minority 4)unborn person should be in existence at the expiration of the interest
3. Transfer to a class some of whom may come under above rules
S.115 of ISA provides that if a bequest is made to a class of persons with regard to some of whom it is inoperative by reasons of the fact that the person is not in existence at the testator’s death or to create perpetuity, such bequest shall be void in regard to those persons only and not in regard to the whole class.
A number of persons are said to be a class when they can be designated by some general name as grandchildren, children and nephews. In Pearks v. Mosesley defined gift to a class as a gift to all those who shall come within a certain category or description defined by a general or collective formula and who if they take at all are to take one divisible subject in certain proportionate shares.
4 Transfer to take effect on failure of prior Transfer
S.116 of ISA provides that where by reason of any of the rules contained in sections 113 and 114 and bequest in favour of a person of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same Will and intended to take effect after or upon failure of such prior bequest is also void.
he principle of this section is based upon the presumed intention of the testator that the person entitled at the subsequent limitation is not intended to be benefited except at the exhaustion of the prior limitation. In Girish Dutt case one S gave property to B for life and after her death if there be any male descendants whether born as son or daughter to them absolutely. In the absence of any issue, whether male or female, living at the time of B’s death, the gifted property was to go to C. it was held that the gift in favour of C was dependent upon the failure of the prior interest in the favour of daughter and hence the gift in favour of C was also invalid. However alternative bequests are valid.
Wills invalid due to fraud, coercion or undue influence
S.61 of ISA provides that a Will, or any part of Will made, which has been caused by fraud or coercion, basically not by free will, will be void and the Will would be set aside.
Fraud: S.17 of the Indian Contract Act provides for fraud. Actual fraud can be committed through 1) misrepresentation 2) concealment . Fraud in all cases implies a willful act on the part of anyone whereby, another is sought to be deprived by illegal or inequitable means, of which he is entitled to
Coercion: S.15 of Indian Contract Act defines coercion. Any force or fear of death, or of bodily hurt or imprisonment would invalidate a Will. In Ammi Razu v. Seshamma , a man threatening to commit suicide induced his wife and son to give him a release deed. It was held that even though suicide was not punishable by the Indian Penal Code yet it was forbidden by law and hence the release deed must be set aside as having been obtained by coercion.
Undue influence: Undue influence u/s.16 of Indian Contract Act is said to be exercised when the relations existing between the two parties are such that one of the parties is in the position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. However neither fiduciary relationship nor a dominating position would raise a presumption of undue influence in case of Wills as all influences are not unlawful. Persuasion on the basis of affection or ties is lawful. The influence of a person in fiduciary relationship would be lawful so long as the testator understands what he is doing. Thus it can be said that a testator maybe led but cannot be driven.
Wills Void Due To Uncertainty
S.89 of ISA states that if the Will were uncertain as regards either to the object or subject of the Will then it would be invalid. The Will may express some intention but if it is vague and not definite then it will be void for the reason of uncertainty. The Will may depose of the property absurdly or irrationally i.e the intention maybe irrational or unreasonable, but that does not make it uncertain. For uncertainty to be proved it has to be proved that the intention declared by the testator in the Will is not clear as to what is he giving or whom is he giving. Only if the uncertainty goes to the very root of the matter, then only the Will has to be held void on the grounds of uncertainty.
Will Void Due To Impossibility Of Condition
S. 124 of ISA provides that a contingent legacy can take effect only on happening of that contingency. A conditional Will is that Will which is dependent on the happening of a specific condition the non-happening of which would make the Will inoperative. S.126 of ISA provides that a bequest upon an impossible condition is void. The condition maybe condition precedent or condition subsequent.
Will void due to illegal or immoral condition
S.127 of ISA provides that a bequest, which is based upon illegal or immoral condition, is void. The condition which is contrary, forbidden, or defeats any provision of law or is opposed to public policy, then the bequest would be invalid. A condition absolutely restraining marriage would also make the bequest void. S.138 of ISA provides that the direction provided in the Will as to the manner in which the property bequeathed is to be enjoyed then the direction would be void though the Will would be valid.
A sample Will–
Will is of two kinds –
Privileged – Made by special class of persons such as soldier at war). It need not be attested.
Unprivileged – Made by ordinary persons. Must be signed and attested by two persons.
A person can make a Will anytime and any number of times. The most recent Will is the one that takes effect. Explicitly canceling the previous Will is not required.
Registration of a Will is not necessary but is recommended.
Format of a Will-
Properties – their description and the beneficiaries
Name any sole beneficiary or universal legatee
Name the executor
Signature and attestation
I A. B. s/o B. C, age 50 yrs, resident of 786, Pusa Road, New Delhi, revoke all my previous Wills and Codicils and hereby make this my Will and testament. It will take affect after my death.I further declare that I am in good mental health and in a sound condition of mind.
I appoint Sh…….and Sh……………..to be the executors and trustees of this my Will.
I have my wife…………[NAME], unmarried, major son…………[NAME]. and one married daughter…………[NAME].
I own the following properties, (a) House……(b) Jewelry etc. (c) Shares in Companies (d) saving and fixed deposit bank accounts with………bank………….branch and some other movable and immovable assets.
I bequeath the following assets to my son (HERE write the description of properties)
I bequeath the following assets to my Daughter (HERE write the description of properties)
I bequeath to my wife all the rest of my assets, including, the balance in my savings bank account with the…………..bank……………..branch…………, cash and other movables and immovable properties.
I direct that any amount that may be determined as payable by me by way of debts, dues and liabilities, including direct and others taxes, charges, land revenue, costs, fees, and expenses to be paid by my son.
IN WITNESS WHEREOF, I have to this my last Will set my hand this …………… day of ……………….
SIGNATURE OF TESTATOR
Signed by the above named testator in our presence at the same time and each of us has in the presence of the testator signed hereunder as on attesting.
- …………………(Name and Address)
- …………………(Name and Address)
SIGNED, PUBLISHED AND DECLARED )
by the said Testator, John James Doe )
as and for his last Will and Testament, )
in the presence of us, both present at )
the same time, who at his request, in his ) ___________________________
presence and in the presence of ) John James Doe
each other, have subscribed our )
names as witnesses. )