This article has been written by Ms. Gargi Lad, a 3rd year student of NMIMS School of Law, Bangalore.

 

INTRODUCTION

Succession can take place in two distinct manners: Intestate or Testamentary. Basically, testamentary succession is just the act of carrying out a will. Your property would subsequently be divided among your rightful heirs in accordance with your will. 

According to Section 2 (h) of the Indian Succession Act, 1925 a “will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

According to Section 3 (64) of the General Clauses Act, 1897 “will” shall include a codicil and every writing making a voluntary posthumous disposition of property.

A will is a formal statement that directs the voluntary posthumous distribution of assets. The Indian Succession Act, 1925 contains the law pertaining to wills. Section 58 specifies that the law is applicable to all people, with the exception of Muslims. The following details are included in a will: “Who receives your estate and how is it divided up among your heirs?” 

Any form of addition to a will is called a codicil. The terms of the will may be modified, added to, or subtracted from by codicils. They can be used to maintain the validity and contemporaneity of a will and testament.

If a will has any major alterations, a codicil can be utilised to add, eliminate, or modify certain clauses. It must be signed and witnessed in the same manner as the will itself, and it must be carried out according to the same procedures. Rather of starting from scratch when someone wants to make a few minor adjustments to their will, a codicil is usually employed.

 

WHO CAN MAKE A WILL?

The Indian Succession Act, 1925 mentions about who can make a will as per Section 59. A will can be made by any person (male or female):

1. Who is of majority i.e.: 18 years of age
2. Who is of sound mind and is able to understand the nature of his acts

• A person usually of unsound mind but makes a will when he is of sound mind is a valid will.
• A person when in the state of intoxication, doesn’t understand the nature of his acts or is not in the state of mind to understand, hence a will made in that state will be invalid.
• A person who is deaf or dumb but understands the nature of making such a will and the consequences of that act, the will is considered to be a valid one

WHO CAN BE A LEGATEE?

Any person who is related or not related to the testator can be a legatee, the legatee can be of any gender religion or age.

THE BEQUEST WILL BE VOID IF:

• A will made by the testator under coercion.
• The will was made in fear or duress.
• The will was obtained by fraud. 
• Any will that was made during the testator’s imprisonment under a lawful authority.

 

CHARACTERISTICS OF WILL:

A Will is a legal instrument:

The will must be legitimate, meaning it must be created by a person competent to make wills and comply with the execution and attestation requirements outlined in Section 63 of the Indian Succession Act, 1925. A minor’s Will is not a formal statement as they are legally incapable of making decisions and unable to understand the nature and consequences of their act. It should be noted that if a document does not constitute a testamentary statement disposing of property, the word “Will” alone does not make it one.

Will is a Declaration

A will is a declaration of the testator’s intentions to bequeath the property to the beneficiary, not a mere agreement or contract.

Intention of Testator

The will or the testament must have clear and express wordings as to describe the testators intention for the distribution of property in the future.

Property of testator is Bequeathed:

The declaration should be made pertaining to the property of the deceased. The testator must be an absolute owner of the property he has bequeathed in the will. The document if gives mere authority to any individual to adopt and manage the property will not be called a will. There should be a proper transfer or disposal of the property.

 

A Will is a unilateral act:

Unlike a gift deed by the donor, no acceptance by the transferees is required during the testator’s lifetime for the will.

 

Will to come in force after the death of testator:

The will is invalid as long as the testator is alive. He has the legal right to dispose of all of his assets in a way that contradicts the terms of his will. For example, A creates a will in which he bequeaths all of his property to his brother. However, during his lifetime, he transfers all of his possessions to his son, leaving him with no assets at the time of his death. The testator’s action cannot be contested by his brother on the grounds that he was obligated to implement the will because the will would take effect only after the testator’s death.

A Will can be revoked or altered:

Only when the maker is competent to dispose of his property by will may the maker amend or cancel the will. Not the day of execution, but always the testator’s date of death, determines when a will becomes effective. The testator’s will is inherently unstable and subject to change because he has the ability to cancel it at any point in time. Consequently, during the testator’s lifetime, he may withdraw his will at any time. A will’s very nature permits its maker to make changes whenever they see fit. A will may be repealed or revised by its maker at any moment when he is competent to dispose of his property by forming a will, according to Section 62 of the Act.

 

A Will is strictly personal act:

The distribution of property is entirely up to the testator.  As a result, the preparation of a will cannot be entirely or partially committed to a third party or done through an agent or lawyer. It refers to the sale of property. Because the objective of drafting a will is to dispose of property, it cannot be assigned to another. Making a will is not something that can be delegated. Not only is the delegation null and void, but so is the disposition.

 

Executor of the Will

The will may contain the name of the executor who the testator wishes to appoint for proper execution of his testament.

 

Signature and Date

The will shall contain a proper and clear date, since the last will that you bequeath will be held as a valid testament, and a signature of the testator should be affixed on the document.

 

Beneficiary Details

The will has to contain the details of the beneficiaries and proper shares to  be distributed among them, every beneficiary needs to be named to avoid future legal battles.

NEED OF MAKING A WILL (TESTAMENTARY SUCCESSION):

Indians are not used to making wills but they really need to make wills rather than completely relying on intestate succession rules.

 

• If we see for Hindu males, father is not classified as a class I heir, which makes it a disadvantage as the remaining close ones i.e. the mother, wife and the children are class I heirs. In case the Hindu make dies intestate the father will get no share in the property however if a will is in force and there is stated equal distribution between the father mother and children, all of them get their rightful shares. Hence making a will is advantageous for the deceased.
• To remain in control: He has total authority over who will inherit his possessions following his demise. In the event that a person dies without leaving a will, their estate would be distributed in accordance with the laws of succession under applicable personal law.
• To prevent disputes: Most people consistently put off creating a will for various reasons. Because life is uncertain, it is best to make a will early in life. A will may be amended an unlimited number of times.
• If a person wishes to reward a friend, an old servant, an employee, or anyone else, he may do so. If he does not make a will, this will be impossible to accomplish after his death.

ADVANTAGES OF MAKING A WILL (TESTAMENTARY SUCCESSION):

• Lessens legal disputes that may arise in cases of intestate succession between two legal heirs
• The testator is in control of who will be the executor of this will, who he trusts completely. Usually, wills can be forged or mis information regarding them can be spread to the family, to avoid this situation a trusted executor needs to be appointed.
• By way of a will the testator can determine exactly which property goes to whom, which won’t be the case when devolution happens through intestate succession.
• Protection of assets: in certain cases, the doctrine of s=escheat is applied and the government inherits the estate, by way of a will, if no succeeding heirs or even the farthest relatives are alive you can give the property to a friend instead of the government. A will also protects the business assets  by passing the control of the company or the power of attorney to the one you desire rather than the rule of succession.
• Arranging a guardian for a minor child can be done as per the provisions of this act, a will for the protection of the minor child’s future can be made in such cases.

 

DISADVANTAGES OF MAKING A WILL

• Only assets titled in the testator’s (decedent’s) name are subject to a will. When a testator passes away, their spouse or another joint owner will inherit the assets that are labelled in joint ownership and are not under its control.
• Assets such as annuity contracts, retirement benefits, life insurance policies, and IRAs that have beneficiary designations are not governed by a will.
• Improper Execution: If certain components necessary for the will’s validity are absent or improperly performed, the will may not come in force. 
• The testator may be compelled to sign the will even though it was not witnessed by anyone, or the will was entirely obtained by coercion and there is no witness to it other than the beneficiary who obtained it.
• A will needs to be approved by the probate process. Probate is required for anything that passes in accordance with your will’s provisions. This implies that it must be managed in the probate court, under the supervision of a judge. This may be costly as well as inconvenient. It is inconvenient since it requires time and requires your loved ones to wait for a court order before receiving your possessions. Additionally, if you own a high-value estate, it may get pricey. Most estate planners would advise you to steer clear of the probate process whenever possible because of this.

TYPES OF WILLS UNDER THE INDIAN SUCCESSION ACT, 1925

Under the Indian Succession Act, we have divided the wills into 2 distinct ones: privileged and unprivileged wills.

 

WHAT IS A PRIVILEGED WILL

Privileged wills are wills that are made by any soldier who is involved in warfare or an expedition, like an airman or a mariner. These individuals need to be of age of majority to make their wills. The purpose of these bequests is to avoid uncertainty, since their work involves huge risk to their life, their family or the ones left behind needn’t undergo the legal hassles to obtain their rightful stake in the property.

How are these wills made and executed?

1. Privileged wills since are made in such circumstances needn’t be in writing and can be made orally.
2. If the will is in writing, it is not necessary that the entire will was written by the testator himself, it can be written partly by any third person. However, in such scenarios it should be signed by the testator. No need for attestation of such wills.
3. If the will is completely written by a third party and not signed by the testator, it will still be a valid will if the party can prove it was written at the direction of the testator.
4. The testator if had written instructions to prepare a will and how OR in presence of 2 witnesses orally instructed how the will has to be executed, but died prior to preparation of the actual will, the instructions will deem to be a valid will.
5. A will made orally shall be void after one month of making it if the testator is still alive.

 

UNPRIVILEDGED WILL

Any person who is not a soldier or involved in warfare or an expedition when makes a will it is known as the unprivileged will. 

Execution of an unprivileged will

1. The signature of the testator or his fingerprints or sign of an agent at the direction of the testator in his presence.
2. The placement of the signature should be such that it should give the document the effect of a will by showcasing the intent of the testator in making of the bequest.
3. The will needs to be mandatorily attested by minimum two witnesses who have seen the testator or the agent sign on the will, or should have received a personal acknowledgment by the testator if he is not physically present while attestation is taking place
4. The person who is a beneficiary to the will or the executor, will not be disqualified by law from being a valid witness merely on the grounds that he is personally acquainted and benefitting from the will. However, in certain scenarios this might turn out to be a huge disadvantage as the beneficiary might obtain the bequest by fraud on the testator or by coercion and by collusion with the 2nd witness prove that the will was not obtained by fraud.

PROVING THE WILL IN THE COURT OF LAW:

Janki Narayan Bhoir v. Narayan Namdeo Kadam

“A party may introduce additional evidence under specific conditions according to Section 71, which is a permissive and enabling section. However, Section 68 is more than just an enabling provision. It lays out the conditions that must be met by the court in order for it to declare a document to be proved. In the event that a party has exhausted all other options and is left with no means of demonstrating due execution by “other evidence,” Section 71 is intended to support and save the day for that party. However, Section 71 cannot be interpreted to release a party from Section 68 read in conjunction with Section 63 of the Act and to grant him broad discretion over whether to produce a witness who would otherwise be available and subject to the jurisdiction of the relevant court, as well as the ability to award damages for any omissions or delays that would otherwise enable him to give a go-by to the legal requirement pertaining to the proof of will execution.”

REVOCATION OF WILLS

The maker, or the testator is the only person who can revoke or alter the will, not his legal heirs or his agent. This is done to prevent anyone (legal heirs) from fraudulently revoking the will to avoid the bequest of the property to the named beneficiary. The testator may revoke the will anytime until hi death, if he makes a new will at a later date, it will supersede the previous will.

As per section 69 of the act, if the testator gets married then the will immediately stands revoked however the exception to this is if the will is made for appointment of power ten it will still remain a valid will. A privileged or unprivileged will can be revoked by any way the testator wishes, like burning or tearing of the will or any other manner even marriage.

 

CONCLUSION

A Will’s preparation is an essential first step towards guaranteeing the equitable distribution of assets and the testator’s desires are carried out after their passing. It is crucial to keep the language clear and precise, precisely list the assets, and give careful thought to who gets to testify and who gets to benefit from it. It is strongly advised to have legal counsel while drafting a will in order to guarantee that all applicable laws and regulations are followed. Recall that a well-written and properly executed Will can ease administrative burdens, safeguard loved ones’ interests, and offer peace of mind.

CASE LAWS

Gnanambal Ammal v. T. Raju Aiyar

In this case the Supreme Court concluded that the primary precept that is to be followed by the Court in determining a Will, and finding out the testator’s intent to bequeath the property, is to be gathered from the wording of the document as a whole.

Re. Wingham, (1948) 2 ALL ER 908 (CA)

The Court held in Re. Wingham, (1948) 2 ALL ER 908 (CA) that a member of a military unit who is sent for training is not, in the sense of the term, in active military service, the Latin phrase “in expenitone” is equivalent to actual military service. Even though they are technically serving in combat, not all soldiers have the right to make a privileged will during a conflict. The benefits are only available when he is working on an expedition or participating in real combat. “Actual warfare” refers to “actual military service,” such as serving on an expedition.

Estate of Anderson, (1944) 149 Cal.App.3d.336

A soldier went to his solicitor in the Estate of Anderson, (1944) P 6 case, asking him to draft a will. However, the soldier was shot and killed before the will could be completed. The soldier did not have the right to make a privileged will since he was not participating in actual combat, the Court ruled.

Surendra Pal and Others. v. Dr. (Mrs.) Saraswati Arora and Another

The Court had noted that there was a need to show that the testator signed the Will, along with his capacity to dispose his property at that particular time he made the will, and that he had signed the testimony voluntarily, and that the Will had been attested in his presence by at least two witnesses. However, suspicion may surface in cases where the signature seems shaky, the testator is mentally weak or intimidated by strong individuals who want to take his property, the disposition seems strange, implausible, and unfair, or there are other grounds to question the testator’s capacity for free will and thought.

Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through LRs. and Others

By referring to Section 63 of the Indian Succession Act, this Court was able to show that the provisions contemplate that in order for the Will to be validly executed, the testator must sign or affix his mark to it, or that another person must sign it in his presence and at his direction. Furthermore, it must be evident from the placement of the testator’s signature or mark and the signature of the person signing on his behalf that the document was intended to be understood as a will.

REFERENCES

• Estate of Anderson, (1944) 149 Cal.App.3d.336
• Gnanambal Ammal v. T. Raju Aiyar (1946) 1 MLJ 233
• Jagdish Chand Sharma v. Narain Singh Saini (2015) 8 SCC 215
• Janki Narayan Bhoir vs. Narayan Namdeo Kadam 2003 (2) SCC 91
• Re. Wingham, (1948) 2 ALL ER 908 (CA)
• Surendra Pal and Others. v. Dr. (Mrs.) Saraswati Arora  1974 AIR 1999
• The Evidence Act, 1872
• The General Clauses Act, 1897
• The Indian Succession Act, 1925