What is a will?

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will

Part VI of the Indian Succession Act deals with the testamentary succession. Any property can devolve in two ways.

1) Testamentary succession: Where any person governed under the Act leaves behind any will or codicil which instructs the executor how the property has to used or those who have rights over that property.[i]

2) Intestate succession: A person is said to have died intestate when he dies without making any testamentary disposition concerning any of his properties.[ii]

Testamentary succession is enhanced by executing a will. According to Section 2 (h) of the Indian Succession Act, 1925 will means the legal declaration of the intention of a testator concerning his property which he desires to be carried into effect after his death. It is a unilateral document that takes effect only after the death of the person. Will is an instrument that instructs any person to dispose of any property how it has been intended by the maker of the will.

Under the Indian Succession Act, 1925 the will made by persons belonging to Hindu, Buddhist, Sikh, and Jain are governed. Mohammedans are not governed by this Act. The wills executed by the Muslims are governed by Muslim Law.

Persons who can make a will:

Any person who makes or made a will is called a testator. A testator is a person who makes a valid will.[iii] Section 59 of the Indian Succession Act, 1925 explains the persons who are capable of making a will.

1) The persons who are of sound mind. The insane persons can make a will during the period in which he was of sound mind.

2) The persons, who are not minors, may dispose of his property by will.

The person must be in a state of awareness while making a will. Any person who was drunk or unconscious due to any illness or not in a state to know what is happening around him cannot make a will.

Types of wills in India:

There are two broad classifications of will:

Unprivileged will:

Wills created by any person who is not a soldier employed in an expedition or engaged in any actual warfare or a mariner at sea is called as an unprivileged will.

Essential conditions of unprivileged will:

a) The testator shall sign or affix his mark to the will. It shall also be signed by some other person in his presence and his direction.

b) The signature must appear to have been intended to give effect to the will.

c) The will shall be attested by at least two or more witnesses. These witnesses must see the testator sign or affix his mark to the will or seen some other person who has been authorized to sign the will by the testator signing or affixing his mark to the will.

d) More than one witness need not be present and no particular form of attestation is necessary.[iv]

Privileged will:

Any soldier employed in an expedition or engaged in any actual warfare or an airman or a mariner being at sea, who is above the age of eighteen, may dispose of his property about conditions as mentioned under Section 66 of the Indian Succession Act 1925

How can a privileged will be executed:

a) The will can be written wholly by the testator, in his own hands and such handwritten wills need not be signed.

b) The will can wholly or partly be written by any other person and signed by the testator and for this will, registration is not required.

c) If the will wholly or partly be written by some person and not signed by the testator then the document is presumed to be valid when the testator recognizes to be his/her will or when such a will was written by his directions.

d) If any person as under Section 66 of the Act has given any written or oral instructions pertaining to the will and has died before such will could be executed, then in such a case it is considered to be a valid will

e) A half-completed privileged will is considered to be valid when there are necessary reasons to prove the inability to complete such will and it does not show the abandonment of interest in executing such will.

f) A privileged will can be made by mouth by declaring the intention of the testator before two witnesses.

Registration of a will:

Under the Indian Succession Act, 1925 registration of a will is not compulsory and it is left to the will of the testator. But still, registration is advisable as it would difficult to prove the contents of the will when any disputes arise regarding the validity of the will.

Restrictions on making a will:

Chapter VII of the Indian Succession Act deals with the void bequests. The following are considered to be void wills.

1) When the transfer is made to a person of a particular description but such a person not existent at the time of death of the testator, such will is not valid.

Illustration: “A” bequests rupees 10000 to the eldest daughter of “B”. The bequest will not be valid when during the death of the A, B has no son.

2) When the transfer is made to a person who is not existent at the time of the testator’s death subject to prior bequest.

Illustration: When a property is bequeathed by the testator to A for life and then to the elder son of A and then to the son of the latter and at the time of death of the testator when A has no son such transfer is held to be not valid.

3) No transfer shall be made to create perpetuity- For example; a bequest can be made by A to B for life and after his death to the eldest son of C. At the time of death of the testator, C had no son but during the life of B a son is born to C. At the death of B, the legacy goes to C’s son. In the above case the bequest made in favor of C’s son cannot be made through will.[v] 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. Such law is called rule against perpetuity.[vi]

Revocation of will:

A will can be revoked

1) By execution of a subsequent will

2) Declaration made in writing which conveys the intention that the will must be revoked

3) Destroying the will.

Evidentiary value of the will:

In order to prove a will legally, it must be proved in the court of law by producing at least one of the attesting witnesses. Under section 68 of the Indian Evidence Act, 1872, a will cannot be used as evidence until at least one attesting witness has been called for the purpose of proving the execution of such will. Such attesting witness should be present in the court proceedings as well.

Under Rameshwari  Devi V Shyam Lal[vii], the court held that the only attested witness surviving and summoned was able to prove nothing, then the will was not be held proved.

In Mukund V Sulakshna Bokaro, the court regarded a will to be not genuine as the signature was obtained in a blank paper by misrepresentation.[viii]

Wills under Christian Laws:

Section 2(d) of the Indian Succession Act defines Indian Christians as any person who is a native of India who is or in good faith claiming to be professing any form of Christian religion. The Christians are governed by the Indian Succession Act, 1925 and hence for the purpose of testamentary succession, Part VI of the act applies to the Christians. Any Christian disposing a property through wills must be above eighteen years and must be of sound mind.

Wills under Muslim Laws:

Under Muslim Law it is not necessary that a testator must execute the will in writing. An oral will is valid and even if a will is reduced to writing it need not be signed and attested by any witness. But these wills are difficult to be proved in case of any dispute.

The provisions of the Indian majority act and the Guardianship and Wards Act are applicable to Muslims and so any Muslim testator must have attained the age of majority and must be of sound mind.

Disposition of property through will:

Under Sunni law:

There are certain restrictions to Sunni Muslims with regard to disposition of property through will. The law states that a Sunni Muslim who is a testator cannot bequeath more than one third of his estate which remains after deducting funeral expenses and all other debts, unless such a bequest is assented to by the legal heirs of the testator. The testators are not permitted to discriminate amongst other heirs.

Under Shia law:  

Shia law does not require any validation by other legal heirs if it forms less than one third of his estate after deduction funeral expenses and debts. Unless the legal heirs give their consent, a bequest to non heirs of more than one third of their surplus estate cannot be made.

Probate:

Probate is discussed under Section 276 of the Indian Succession Act,1925. Probate is an order issued by the court in respect of a will which certifies and upholds its genuineness. The executor appointed with respect to any estate may not be able to lay his hands on your property after the death of the testator unless probate has been granted by the competent authority. In order to obtain a probate, an application for grant of such probate must be filed in the competent court. The will in question must be annexed to the application which must be filed by the executor of the will. The person filing the application shall be called as the petitioner or propounder of the Will. Such application must state the:

  • Date and time of the testator’s death.
  • The writing that has been annexed must prove that it was his last will and testament.
  • Such writing was duly executed.
  • The amount of assets those are likely to be obtained through that will.

Letters of administration:

In case of where any person dies intestate without leaving a will or when there is no executor for  particular will or when any appointed executor refuses to act, then letters of administration may be issued which entitles the administrator all rights that are essential for the efficient administration of the estate. Such an application has to be filed in the competent court of jurisdiction and such court will appoint an administrator to dispose the property.

Conclusion:

Will is considered to the voice of the testator and it conveys how the person wants his property to be used after his death. Such wills must be protected and proper registration helps in validating the will.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[i] Part VI of the Indian Succession Act, 1925

[ii] Section 30 of the Indian Succession Act, 1925

[iii]West’s Encyclopedia of American Law, edition 2. (2008)

[iv] Section 63 of the Indian Succession Act, 1925

[v] Section 114 of the Indian Succession Act,1925

[vi]http://www.helplinelaw.com/real-estate-wills-probate-and-trust/WISA/wills-under-indian-succession-act-1925.html

[vii] AIR 1980 All. 292

[viii] AIR 2017 M.P.188

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