Wills

Will:

A Will under section 2(h) of the Indian Succession

Act, 1925 is the legal declaration of the intention of
the testator with respect to his property which he
desires to be carried into effect after his death. It is
testamentary instrument by which a person makes
disposition of his property to take effect after his
death, and which, in its own nature, is ambulatory
and revocable during his life.
In laymans terms it is a legal document that states
what is to be done with the persons property after
his death. It clearly states the persons intention on
how to dispose off with his property after his death;
the person can make changes to it and also
completely revoke it during his lifetime.
It is important to note that the intention to create a
Will should be present for it to be construed as a
valid Will.

Who can make a Will?

According to section 59, every person who is of sound
mind and who is not a minor may dispose of his
property by Will.
A person who is of unsound mind may make a Will
when he is of sound mind and is completely capable
of understanding his actions.

What is the importance of a Will?

When a person dies without having made a Will,
there is often confusion amongst the family members
and relatives as to whether the deceased did make
any Will prior to his death or not, but if a Will is
available, the only question that needs to be
ascertained is whether it is the last Will of the
testator.
If one does not make a Will, then his property will be
inherited by his legal heirs in accordance with the
laws of inheritance applicable to him.
A Will is an absolutely personal document. More than
anything it is an expression of the relationship with
the members of family or relatives, etc. A Will allows
the devolution of property in a personalized manner
rather than letting the impersonal rules of
inheritance take effect.
Many disputes can be resolved at the very outset if
there is a clear disposition of ones property in a
Will.
By means of a Will the testator can appoint in
writing, a testamentary guardian for his child. In the
event of the death of a parent the law would
ordinarily uphold the right of surviving natural parent
to be the guardian of the child. However, if there is
no surviving parent, the law attaches great
importance to the Will of a parent in deciding whom
to appoint as a guardian. This is a matter of great
importance with regard to the future of the child.

 A Will provides more room inter se the laws of

inheritance, which sometimes do not cater to the
special needs and requirements of the members of a
family, by means of a Will one can have somewhat
greater provision for a handicapped son or a
widowed daughter, which would not happen
according to the laws of inheritance.

Types of Wills:

Unprivileged Wills.
Privileged Wills.
Registered Wills.
Holographic Wills.
Joint Wills.
Conditional or Contingent Wills.

Unprivileged Wills: Unprivileged Wills are executed under section 63 of

the Indian Succession Act, 1925. It empowers every
competent person, not being a soldier employed in
an expedition or active warzone or an airman so
employed or engaged or a mariner at sea, to execute
his Will in accordance with the following rules:
a) The testator shall sign or affix his mark on the Will or
it shall be signed by some other persons in his
presence and according to his directions.
b) The signature or mark shall be placed so as to appear
that it was intended to thereby give effect to the
writing as a Will.

c) The Will should be signed by two or more witnesses

who have seen the testator sign or affix his mark to
the Will.

An unprivileged Will can be created by anyone who is

not on active duty in the Armed Forces, and all the
general rules apply to these kinds of wills. These
wills have to be in writing and cannot in any
circumstance be oral in nature.
All unprivileged Wills should be in accordance with
the above stated section, and any Will which is non
compliant with this cannot be treated as a valid legal
Will.

An Unprivileged Will can be revoked under section 70

of the act by some writing declaring the intention of
revoking the Will or by creating another subsequent
Will.
A Will can also be revoked by the burning, tearing or
destruction of the Will by the testator himself. For
the Will to be successfully revoked it has to be done
within the testators life by the testator himself or
any other person in his presence with the intention
of revoking the same.
Mere loss of a Will does not operate as a revocation
but where a Will is destroyed by the testator or with
his privacy or approbation, it is to be deemed to
have been revoked.
A Will can also be revoked if the testator marries a
person after the creation of such Will under section
69, but this rule does however does not apply to
Wills made by Hindus, Sikhs, Jainas or Buddhists.

Privileged Wills: Privileged Wills are executed under section 65 of the

Indian Succession Act, 1925. It empowers every
soldier employed in an expedition or active warzone
or an airman so employed or engaged or a mariner at
sea, to execute his Will in accordance with section
66 which states the following rules:
a) The Will maybe be written wholly by the testator
with his own hand, in such a case it need not be
signed or attested.
b) The Will if written wholly or partly by another person
needs to be signed by the testator but need not be
attested.
c) The testator may give the will by word of mouth by
declaring his intentions before two witnesses present
at the same time.
A Privileged Will can be created by anyone who is
entitled to do so under section 65.
It is however pertinent to point out that a Hindu
person cannot do so even if he fulfils the conditions
stated by the section. This is because section 57,
defines that the parts that are applicable to all
Hindus are mentioned in Schedule III, which does not
include sections 65 and 66.

This was also upheld by the Delhi High Court in the

case of Sunita Shivadasani v. Geeta Gidwani & Anr
AIR 2007 Delhi 242 wherein the appellant alleged
that her deceased father had made an oral Will
under which the property bequeathed to the
respondents was instead bequeathed to her but the
Honble Division Bench held that since the alleged
oral Will was created after the 1st of January 1927,
and section 57(c) was made applicable from that
date onwards to all Wills made by Hindus, Jainas,
Sikhs and Buddhists, which gives force to Schedule III
read with section 57, and under this said schedule
there was no scope of a Hindu making a Privileged
Will or any Oral Will. The appeal was therefore
dismissed.

A Privileged Will can be revoked under section 72 of

the act by any action declaring the intention of
revoking the Will or by creating an Unprivileged Will.
A Will can also be revoked by the burning, tearing or
destruction of the Will by the testator himself. For
the Will to be successfully revoked it has to be done
within the testators life by the testator himself or
any other person in his presence with the intention
of revoking the same.

Registered Wills: A Will is not mandated by law to be registered but it

may be registered under section 18 of The
Registration Act, 1908.
A testator may either personally or through an
authorized agent deposit the Will with the Registrar
in a sealed envelope bearing the name of the
testator along with a statement on the nature of the
documents.
All Wills deposited with the Registrar are deposited
according to the rules provided by section 43 of The
Registration Act, 1908. Once the testator presents
the Will to the registrar for deposit, the registrar
shall make a note of it in Register Book No.5 along
with the date, time and name of people who may
testify as to the identity of the testator or the agent.
Following this the registrar stores the sealed
envelope in a fire-proof box.
After the death of the testator, an application is
made to the Registrar to open the sealed envelope
and only if the Registrar is absolutely satisfied is the
envelope opened in the presence of the applicant.
The Registrar then makes a note of all the contents
into Book No. 3 and thereafter re-deposits the
original Will. All this is done under the provisions of
section 45 of The Registration Act.

Holographic Will: A holographic Will is any Will that written by the

testator in his own hand and is then signed by him
with the intention of creating a Will. There must be
evidence that the testator actually created the will,

which can be proved through the use of witnesses,

handwriting experts, or other methods.

Joint Wills:

A Joint Will is a testamentary instrument whereby two

or more persons agree to make a conjoint Will. Where
a Will is joint and is intended to take effect after the
death of both, it will not be enforceable during the
life time of either. Joint Wills are revocable at
anytime by either of the testators during their joint
lives, or after the death of one, by the survivor.

Contingent Wills:A Will may be expressed to take effect only in the

event of the happening of some contingency or
condition, and if the contingency does not happen or
the condition fails, the Will is not legally enforceable.
Accordingly, where A executes a Will to be operative
for a particular year, i.e. he dies within that year but
if A lives beyond that period, the Will will not be
valid. A Conditional Will is invalid if the condition
imposed is invalid or contrary to law. These kinds of
Wills are provided for under section 124 of the Act.

Wording of a Will: A Will may be constructed in simple terms, it is not

necessary that any technical terms or words of art be
used; the wording should be such that the intentions
of the testator can be clearly made out. This is
provided by section 74 of the Act. The Will should
also not be ambiguous or uncertain in nature as such
Wills where the intentions cannot be made out will
be held void.

Wills obtained by unfair means: Any Will that is obtained via Coercion,
Fraud or at an improper moment or in a
circumstance where the free agency of the testator
is taken away is void under section 61.

Executor:

The testator sometimes appoints an executor in his

Will. This executor will take care of all affairs of the
testator after his death. An executor in India has
numerous responsibilities, and these include, but are
not limited to:

Funeral arrangements and paying for the funeral

from the testators assets.
Registering the testators death and informing all
concerned.
Filing probate, proving his identity, and establishing
his authenticity.
Paying the testators debts.
Caring for the testators property until it is sold or
given to your beneficiaries.
Dealing with any legal procedures.
Locating all the beneficiaries.
Distributing the assets of the estate to the
beneficiaries.
Record keeping of all transactions.
Submitting receipts to the court.
Taking legal and financial responsibility for the
administration of the testators estate.
An executor receives compensation for the work they
do administering the estate. The amount received is
normally based on the size of the estate and its
complexity.