‘WILL’ under Indian Law

 

Meaning:

A Will is a solemn document by which a dead man entrusts to the living to the carrying out of his wishes. Section 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.

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 It can be withdrawn at anytime during the lifetime of the person making the Will.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

Ø 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.

 

Ø 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 both, 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.

 

Ø 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.

 

Ø 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.

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.

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.

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