Will is a legal document which defines and describes the desire of the testator or the owner of the property to and in the manner of his wish to dispose off his property, which is to take effect only after his death. Unlike a contract the testator- maker of the will can at any time revoke, change or alter his will as and when he desires to do so. Although a will give power to the testator to dispose the property according to his yearning, neither in Muslim Law or Hindu Law, a person can bequest his whole property by will or to disinherit his family, wife, children, etc from getting the property. A document by which no property is disposed off but which merely gives an authority to adopt, though described by the testators a will, is not a will.[1]
Since India is mother and sentinel of various religions of the world giving them all place in her land, many such religions have their own customary rules regarding wills which are followed as per their religion. Nevertheless, the Indian Succession Act, 1925 gives general meaning, definition to terms relating to will and also general rules for the validation of a will which we will glimpse further on.
Definition of Will
Will means the legal declaration of a testator with respect to his property which he desires to be carried into effect after his death. The formal definition of the will id given in the § 2 (b) of the Indian Succession Act, 1925 “Will is the legal declaration of the intension of a testator with respect to his property which he desires to be carried into effect after his death.”
History and Origin of Laws Relating to Will
Laws relating to wills were codified by the British in India, like the Hindu Wills Act 1870. Prior to the coming of this act wills in Hindu could be made both orally or in writing. There was no compulsion as to signature or attestation. Probate was granted for anything. Thus the Hindu wills act mad eit mandatory for some specific wills to be attested and be in writing, but again the Indian Succession Act, 1925, made it mandatory for all Hindu wills to be in writing, signed and attested by witness for the proof of its validity, although Muslim law still allows wills to be valid if made orally, but practically it becomes very difficult to prove its authenticity.
But that was not all; there is some early reference in the Muslim Law of the wills, which are declared as lawful in the Koran.[2] In the Muslim Law only up to one third of the property is permitted to be bequeathed by the will. This rule is traced to the Hades of the Prophet, where Prophet visited him during his illness and had advised or permitted him for the bequest of only one-third of his property and to leave the rest for his family so that they don’t have to beg from the others and life a life of poverty.
Features of a will
Some important features of a will are:
- Effect to take place after death- a will can take effect only after the death of the testator and not before it. A person who is responsible for the death of the testator cannot be made beneficiary in the will.
- Its revocability– a will can be revoked with the wish of maker of the will a many times as he desires to do so, he can alter a part of it or the whole of it.
- Transfer and dispose of both movable and immovable property- a will is not just the wish of the dying or dead man, it is the distribution and disposal of his property to ones he desire to give.
Who can make a will
Not everyone can make a will. Making a will to dispose off the roperty is a serious job and requires some prerequisites, therefore § 59 of the Indian Succession Act, 1925 describe who can make a will.
- Should be a person of sound mind
- Should have attained majority i.e. 18 years
- A married woman can also make a will, but only for life interest and of the property where she has her personal interest.
- A person who is deaf or dumb or blind can also make a will if he has not been tampered with.
- An insane can also make a will if he had been in the period of sanity while making a will, and signing it
- A will made by a drunk or ill person is valid if it was made in the time when he was at his senses or sober.
- A will made during old age, illness or infirmity is valid only if it is free from duress, coercion, fraud or undue influence
Types of will
Wills can be of varied types according to the customs practiced by different sects ang religious groups. But according to the Indian succession Act there are basically two types of wills.
- Joint Wills
- Privileged Wills
- Unprivileged Wills
Joint Wills
A Will made by two or more persons jointly is called a joint will. Two or more persons can make a joint Will. If the joint Will is joint and is proposed 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 demise of the survivor.
Privileged Wills
These are the wills made by a solder employed in an expedition or actual warfare, or an airman so employed or engaged or a mariner at sea. The persons such employed cannot be expected to have the resources and time for completing all the formalities required for validation of the will, therefore there has been excused from such legal requirements and given the privilege of making simpler wills.
Indian Succession Act, 1925 § 66, governs the validity of the privilege wills. It says that the privilege wills can be made both either orally or in writing, and the following rules are to be applied to the thus written wills.
- If such will is wholly written by the testator I his own handwriting, it need not be signed.
- If it is written by some other person(wholly or in part) by the direction and wish of the testator, then the signature of the testator will make it valid.
- If it is neither written by the testator nor signed by him even then , if he recognizes it to be written by his direction and as his will, then it becomes valid.
- If it appears that the execution of the instrument is not complete in the manner the testator desired it to be, then that would not invalidate the will, unless there was a prior intension of the testator to abandon its execution
- If some instructions have been written for the preparation of the will but the proposed testator dies before the preparation then such instructions can be used as his real will.
- If proposed testator has given instruction orally before two witnesses for preparation of a will and dies before the making of will or it being read to him, then that again can constitute as his real will.
Unprivileged Wills
All other kinds of will, which are not privilege wills are called unprivileged will. These are the wills that need or require certain conditions to be fulfilled for the will to be valid. These are the commonly made wills by the masses. This area of law is covered in § 63 of the Indian Succession Act, 1925.
Indian Succession Act, 1925 § 63, makes regulations for the unprivileged wills which also defines the essentials for the validity of a will.
- Signature of the testator in the will is essential in the document to make it valid. The act also provides that ink and pen is not essential for the purpose, the stamped name of the testator.
- If there is no signature of the testator, a mark will also do the job. The thump mark of the testator can mark the validity of the will if it is on the will he required to be made.
- If the document which comprise of the will is in more than one pages then all the pages need to be signed for the validity of the each page.
- Execution by putting of mark by the hand guided by another person is also allowed if no fraud is involved.
- Place of signature is not an issue, even if it is on the text of the documents it is acceptable.
- Attestation of the signature is also compulsory, by two witnesses when signed by the testator as per § 67 of the Act.
Registration of a will may not be necessary. It is although a convenience for the law, but it does not affect the will as such. It is advisable to register the will with the registrar where the registrar then becomes the legal guardian of the will, the document then becoming strong evidence in law for the validity of the will.
Revocation and Alteration
A will according to § 62 of the Indian Succession Act, 1925 can be revoked or altered by the testator or by another in his direction or wish. A will can be revoked or altered by an act implied or expressed.
A privilege will can be revoked by burning or tearing or otherwise destroying the document on which it was made, or by writing a subsequent or a new will. Unprivileged will can be revoked by marriage, another will or codicil, by writing declaration with intension to revoke. Impliedly it can be revoked if the subject of the will the property is already disposed off.
Executors
When the will is made, generally a executor is appointed for the execution of the same, when and how it is to take effect. At the instance where no executor is appointed by the will then application may be made to the Court for the appointment of an executor. The probate of the will is granted to the executor who is appointed by the Will. Therefore an executor is a person who is appointed by a testator to execute his who is duty bound to distribute the assets of the testator as per the provisions of his Will.
Who can be an Executor
Anyone who is capable of executing Wills and is appointed can be executors. Even a minor can be appointed an executor of a Will, but a probate cannot be granted to the minor until he attains majority. A testator can appoint one or more executors. The appointment of an executor may be absolute or for a limited purpose or limited time. An executor as such does not derive any benefit under the Will, unless specifically provided for. However, as an executor has vast powers and the property vests in the executor until it is finally distributed to the legatees, it is therefore advisable to appoint a responsible and accountable person/institution such as a bank as an executor. The Executor is primarily appointed to manage the estate of the deceased for the benefit of the beneficiaries/legatees under the Will.
Legal status of the Executor
The executor is the legal representative for all purposes of a deceased person and all the property of the testator vests in him until the property is distributed as per the provisions of the Will. The executor is entitled to represent the testator in any legal action (not including criminal or defamatory proceedings). For example, an executor can sue for recovery of the testator?s debts. It is only the legal estate of the deceased that vests in the executor and the vesting is not of beneficial interest. The property vests in the executor only for the purpose of representation and administration.
Probate and Letters of Administration
A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the estate to the executor of the testator. It is the official evidence of an executor’s authority. A probate is mandatory when the Will is executed by a Hindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or pertains to immovable property situated in Mumbai, Calcutta or Chennai.
A probate granted by a competent court is conclusive evidence of the validity of a Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding to revoke the probate. However, it only establishes the legal character of the executor and in no way decides the title or even the existence of the property devised. The grant of the probate decides only the genuineness of the Will and the executors right to represent the estate.
- The grant of a probate is conclusive evidence of the testamentary capacity of the person who made the Will.
- A probate is conclusive as to the genuineness of the Will and appointment of the executors.
- Once a probate is granted, no suit will lie for a declaration that the testator was of unsound mind.
- Probate is conclusive as to the representative title of the executor.
Under the Indian Succession Act, 1925, a probate can be granted only to an executor appointed under a Will. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government.
A probate cannot be granted until the expiration of seven days from the date of the testator’s death.
Letters of Administration
In the event a person dies intestate or a Will does not name any executor, an application can be filed in the courts of law for grant of probate.
Under the Indian Succession Act, 1925, a LoA can be granted to any person entitled to the whole or any part of the estate of the deceased person. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government.
A LoA cannot be granted till the expiration of fourteen days from the date of the testator’s death.
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.
The declaration should relate to disposition of the property of the person making the Will.
Applicable laws & Special Provisions: Indian Succession Act, 1925
- Hindu Personal Laws
- Muslim Personal Laws
- The Indian Registration Act, 1908
Special Provisions
Hindus, Sikhs, Jains and Buddhists
- Unlike in the case of Parsis and Christians a Will is not revoked upon the marriage of a Hindu, Sikh, Jain or Buddhists.
- The executor can also be the witness to the Will.
- A probate is obligatory in the occasion that a Will is executed in the municipalities of Mumbai, Calcutta or Chennai, to the scope that Will pertains to immovable property in Mumbai, Calcutta or Chennai.
Parsis and Christians :
- A probate is obligatory in the occasion that a Will is executed in the municipalities of Mumbai, Calcutta or Chennai, to the scope that Will pertains to immovable property in Mumbai, Calcutta or Chennai.
- The Will stands revoked on the marriage of a Parsi or Christian testator.
Muslims
India being a multi-religious country supports and imbibes multi-dimensional laws on a particular subject in the form of Personal Laws. Indian Muslims are governed by their own personal laws and the Indian Succession Act does not apply to them very effectively.
Any Indian Muslim, can dispose off his property through a will if he is of sound mind and is major, the religion also imposes certain restrictions in disposing off the whole of the property, which are mentioned below.
- A Muslim can bequeath only one-third of his property by Will.
- The heirs of a Muslim testator may consent to bequest in excess of one-third of the testator’s assets.
A Muslim may change his Will during his lifetime or cancel any legacy. A Will may also become void if a Muslim testator, after making the Will, becomes unsound of mind and continues to be so till his death. Similarly, a bequest which is contingent, or conditional or in the future or is alternative to another, pre-existing one, would be void. If an executor is appointed by a Muslim testator, the powers and duties of the executor will be in accordance with the provisions of the Indian Succession Act which have been discussed elsewhere.
Conclusion
Will although is considered fancy and unessential document considering the fact that the making or registration of the same being unessential, but it is an important document, which decides the fate of not only your loved ones, but also distribution of the property. Without the will it becomes difficult to dispose of the property, with the involvement of the state coming into play. If a person dies without a will or heirs, there are fair chances of the State usurping the whole property. It is a paradox that yet almost 80% Indians die without utilizing this privilege.
SPECIMEN OF A WILL[3]
- I, ABC of Bombay, Indian Inhabitant, hereby revoke all previous Wills, Codicils and/or Testamentary writings that I may have made and I declare this to be my last Will and Testament.
- I appoint XYZ to be Executors of this my Will.
- I direct my Executors to spend a sum not exceeding Rs. 3,000/- for funeral expenses and other obsequial ceremonies. They shall not be liable to render any accounts in respect of any amounts so spent by them.
- I direct my executors to collect my estate and pay all my just debts, if any, due and owing by me to anyone.
- I also direct my Executors to obtain Probate if necessary and pay and incur necessary costs, charges and expenses in relation to the collection of my Estate as well as for obtaining Probate and for any other necessary charges.
Specific Bequests
- I give to my son Sohan the diamond ring presented to me by C on my 50th birthday.
- I give to my niece Jill the sum of Rs.1,000/- lying in my Safe Deposit Vault No. 123, Bank of India, Fort Branch.
- I give to my daughter Tara all my shares in Tata Chemical Co. Ltd.
General Bequests
- I direct my Executors to give to my nephew Mohan at the time of his marriage gold ornaments worth Rs. 50,000/-.
- I direct my Executors to give to my servant Pandu who has served me loyally for 23 years a sum of Rs. 10,000/-.
General Bequests out of a Specific fund
- I direct my Executors to sell my flat in which I am living at the time of my death and use the net sale proceeds for payment of a sum of Rs. 5 lakhs each to my two sons Rohan and Sohan. Should either of the two sons be not living, my Executors are directed to pay the share coming to such deceased son to the male children of such deceased son in equal shares. If either of my sons should die without leaving any male issue, then his share shall pass to the other surviving son.
Bequest to Charity
- After payment of the above referred moneys to my sons I direct my Executors that out of the balance sale proceeds of my flat, they should pay a sum of Rs. 1,00,000/- to a charitable organization constituted for welfare of handicapped children.
Creation of Trust (without using expression ‘Trust)
- I further direct my Executors that out of the sale proceeds of my said flat after making payments as stated above, they should invest the remaining sums in Government Securities and utilize the income thereof for payment of such sums of money as they in their discretion may consider fit from time to time by way of Annual Scholarships to girls of the Darjee Community for purposes of defraying expenses of college education for prosecuting post graduate studies in the field of medicine.
Alternatively, Directions to Create a Trust.
I further direct my Executors that after making payments as stated above, they should utilize the balance sale proceeds of my flat for the purposes of creating a permanent Trust in the memory of my beloved father. For this purpose, I direct my Executor to invest the balance sale proceeds in government securities and utilize the income thereof for awarding Annual Scholarships in the name of my father. These scholarships will be awarded to girls of the Darjee Community for purposes of defraying expenses of college education for prosecuting post graduate studies in the field of medicine. There will be two trustees of such Trust to be created by my Executors. The trustees will have the power to appoint their successors and the discretion to fix the amount of the annual scholarship from time to time as may be necessary for defraying the college educational expenses of the scholars. The trustees will also have the discretion to invest excess income of the Trust for the purposes of promoting the objects of the Trust.
Residuary Clause:
- I direct the rest and residue of my estate whatever the same and wherever the same may be found to be equally distributed amongst the children (male and female) of my daughters.
Execution Clause:
- Executed by me the above mentioned ABC this 1st day of December 1990.
[Signature of Executor]
In the presence of
(1) Mr. BB
of Bombay, Indian Inhabitant,
residing at _____________ [Signature of Mr. BB]
and
(2) Mr. CC
of Bombay, Indian Inhabitant,
residing at __________________. [Signature of Mr.CC]
CODICIL
- I, ABC of Bombay, Indian Inhabitant, make this Codicil in addition to the Will made by me on 1st December 1990
- By this Codicil I change the provisions of the said Will as follows :
- I direct my Executors to pay a sum of Rs. 5,350/- to Mr. Banker in satisfaction of moneys borrowed by me, if not already repaid by me.
- In paragraph 8 of my Will, substitute the name of the Company ‘Tata Chemicals Ltd.’ with the name ‘Bombay Dyeing & Mfg. Co. Ltd.’
- In all other respects the provisions contained in my Will dated 1st December 1990 will remain in full force and effect.
(Execution Clause similar as in the Will).
[1] Jagannatha v. Kunja, AIR 1922 PC 162
[2] Hedaya, Hamilton’s Translation, Gracy, 1870 p. 671
[3] www.dqianalytics.in/articles/SPECIMEN%20OF%20WILL.doc