HUF/WILL

Mar 5, 1997

WHY WRITING THE WILL IS NECESSARY FOR ACHIEVING SOCIAL OBLIGATION AND TAX PLANNING
(1997) 137 CTR (Articles) 0087
The Hindu Succession Act, 1956 which came into force with effect from 17th June, 1956 materially altered the order of
succession and also enlarged the disposing capacity of a testator. It is to be kept in mind that prior to the coming into force of
the Hindu Succession Act, on the death of a male Hindu dying intestate the properties left by him on his death devolved on his
sons as their joint family property and the daughters of the deceased did not have any share in the properties, whether the
properties were self-acquired or joint Hindu family property in the hands of the deceased, while after the commencement of the
Hindu Succession Act, not only the self-acquired properties of a male Hindu passes on to his sons, daughters and wife in equal
shares but also his share in the undivided coparcenary property. A Hindu male or female has the right to dispose of his or her
self-acquired properties by means of a will to any person or persons of his or her choice, but a Hindu male had no right to
bequeath his share in the coparcenary property prior to the coming into force of the Hindu Succession Act, 1956, which
granted power to a Hindu male to bequeath even his share in the coparcenary property by means of testamentary disposition
and thus a male Hindu can deprive from his estate not only daughters but can also deprive his sons by bequeathing the
self-acquired as well as his share in the coparcenary property to the persons specified in his will who may even be an outsider.
Nomination of insurance policy in favour of wife or some other person is not enough to complete the title and the other legal
heir shall continue to have a right in the nominated property, unless it is bequeathed by means of testamentary disposition.
According to the learned author, the passing of the properties under a will can be fruitfully used as a tax planning measure
though there cannot be a readymade formula which may suit all persons. The bequest is to be devised according to the specific
circumstances of each case and a tax planner has to take into consideration the composition of the testator's family, the nature
of the properties to be bequeathed and the wish of the testator.
BAL KRISHNA BHARGAVA
SYNOPSIS
1.Introduction
2.Historical background
3.Legislation relating to wills
4.Limitation on the powers of a Hindu
5. Hindu Succession Act, 1956
6.Subject matter of will
7.Share in coparcenary property
8.The main characteristics of a will
9.Distinguishing features
10.Will to be in writing
11.Special benefits
12.Privileged wills
13.Execution and attestation
14.Acknowledgment of execution

15.Proof of execution
16.Tax planning
1. Introduction
Will is one of the most important and the only document of a person's wish to be carried out after his death. It is the only
document which in its totality comes into operation after the death of the testator and not any time prior to his death.
Will means the wish of the person intended to take effect on his death. It is a legal declaration and directions of and by a
person of his intention with respect to matters which are within his domain or things which are within his disposing capacity to
be carried out after his death.
A person has the liberty to devise and bequeath any kind of property owned by him whether it be movable or immovable,
tangible or intangible and it may be noted that any right in property is also a property capable of being disposed off. All that is
heritable can be disposed of by means of a will, for instance, the share of a person in the goodwill of a partnership firm. The
tenancy rights in a rented premises have also been held to be heritable and can thus be dealt with and disposed off by means of
a testamentary disposition, i.e., will, to any person to whom the testator desires to bequeath.
It is not only that a person may devise his movable or immovable properties by means of a will but a person can legally
provide for many more matters which are within his domain just as a person governed under the Hindu law can confer by
means of a will valid power to his widow to adopt a son to him and as to how and in what manner his last rights shall be
performed.
The donor can thus impose certain specified obligations and cast responsibility and impose liability upon the persons to whom
he bequeaths his properties. The property can thus be passed on to the legatee with restrictions, limitations, responsibilities,
liabilities and obligations attached to it. The property bequeathed by the testator does not require the acceptance or consent by
the legatee during the life time of the testator and the document of the will is thus a unilateral one. The legatee has the choice
to accept the bequest made to him or refuse to accept, as the will of a person cannot be imposed upon any person without his
consent and acceptance, but in case the legatee chooses to accept, it is not open to him to accept the properties bequeathed
without the attached liabilities and obligations. A will has to be accepted by the legatee in its totality or refused in its totality,
no partial acceptance is permissible.
The person who makes the will is called the testator while the person who gets the benefit or in whom the property is to vest
are called the beneficiaries or the legatee, the subject-matter of will is called the bequest.
2. Historical background
Originally there were no statutory law in respect of wills in India. The Hindu law governed the wills relating to Hindus and
Mohammedan law governed the Muslims. There was no law for persons belonging to other faiths and religions.
Even in the case of Hindus, earlier there was a conflict on the rights of Hindus to bequeath their property by will, but the
controversy was resolved long back by the Courts administering justice and it has been long before established that the Hindus
have such rights of disposition of their properties, subject to limitations placed by the texts under the Hindu law.
3. Legislation relating to wills
In India there came to be enacted several legislations in connection with the will and the matters governing in relation
therewith. The following legislative enactments come to be passed from time to time.
(i) Indian Succession Act, 1865
It applied to Anglo-Indians, Englishmen and others but excluded Hindus, Budhists, Sikhs, Jains and Mohammdan.
(ii) The Hindu Wills Act, 1870
The application of this Act was very limited. It provided rules for the execution, attestation, revivals, interpretation and probate
of the wills, relating to Hindus, Jains, Sikhs and Budhists in the territories to which it applied.
(iii) The Probate and Administration Act, 1881

The Act provided for the grant of probate and letters of administration in respect of estates of Hindus, Jains, Sikhs and
Budhists.
(iv) The Indian Succession Act, 1925
This Act consolidated the law relating to testamentary and intestate succession. It repealed all the above mentioned enactments.
The Indian Succession Act applies to whole of India, but all the provisions of this Act did not apply in the case of Hindus,
Mohammedans, Bhdhists, Sikhs and or Jains.
The Hindu will or wills made by Hindus are yet governed by Hindu laws customs having the force of law. The Courts being
bound to apply the Hindu law have applied the Hindu law of gift s to Hindu wills in respect to the property which can be
transferred by will and the person to whom it can be transferred where no specific provision is found in Hindu law or usage of
principles of equity and good conscience where applicable.
Excepting wherever they are subject to legislative enactments the wills of Hindus are governed by the Hindu law.
4. Limitation on the powers of a Hindu
(a) The right of Hindu to make a will is subject to his making adequate provisions for the maintenance of his widow.
(b) A Hindu cannot so dispose of his property as to free himself from the claim of maintenance of his wife.
(c) A member of a Hindu undivided family cannot make a bequest of ancestral property under the Mitakshara school of Hindu
Law.
5. Hindu Succession Act, 1956
The Hindu Succession Act, 1956 which came into force with effect from 17th June, 1956 has made inroads into the Hindu law
thereby materially altering the order of succession on the death of a Hindu male or female. In the case of a Hindu male, the
order of succession was changed to the effect that the property of male Hindu dying intestate has been made to devolve
according to the order set out in Class I of the Schedule on the death of a Hindu male, namely, the property passes on to the
sons, daughters, wife, mother, son of a predeceased son, daughter of a predeceased son, son of predeceased daughter, daughter
of predeceased daughter, widow of a predeceased son all sharing equally amongst themselves.
The Hindu Succession Act further provided for the devolution of interest in the coparcenary property and changed the old
order to the effect that the interest of a coparcener in the property was made to devolve by inheritance instead of survivorship
as heretofore, when the deceased left behind a surviving female relative specified in Class I of the schedule or a male relative
specified in that class who claims through such female relative, i.e., if there is a daughter or a daughter of a predeceased son, or
a son of a predeceased daughter.
The Hindu Succession Act provides that in all the abovementioned circumstances the interest of the deceased in the mitakshara
coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the said Act and not by
survivorship.
The old order was changed to the effect that prior to the commencement of the Hindu Succession Act, the daughter had no
right in the share of the coparcenary property of the deceased, whether the property was self-acquired or coparcenary property,
but after the commencement of the Act on 17th June, 1956, a female member as specified in Class I of the schedule got entitled
to share equally with the male members.
6. Subject matter of will
Under the Hindu law, the following properties can be disposed of by will.
(1) The separate or self-acquired property of the Hindu governed by mitakshara school of Hindu law.
(2) All properties, whether separate or joint, under the Dayabhaga law.
(3) All properties in the hands of sole surviving coparcener.

(4) Impartible property, unless there is a special custom prohibiting alienation.

(5) Stridhana property of female.
(6) Small portions of property inherited by widow.
(7) Movable inherited or obtained by way of share on partition by a widow under the Muyakha.
(8) Small portions of coparcenary property in the hands of the father.
7. Share in coparcenary property
According to the mitakshara school of Hindu law a coparcener was not competent to make a bequest of a share in the
coparcenary property and a will by Hindu father of a share in the ancestral property was invalid, but the Hindu Succession Act,
1956 vested the powers in a Hindu to dispose by a will or other testamentary disposition any property, which is capable of
being so disposed by him, in accordance with the provisions of Indian Succession Act, 1925 or any other law for the time
being in force and applicable to Hindus.
The said Act further provided an explanation that the interest of a male Hindu in a mitakshara coparcenary property shall be
deemed to be property capable of being disposed of by him.
The provision made under the Hindu Succession Act, thus not only permits the disposition of the self-acquired properties by
means of a will but also the share in the coparcenary properties. A person can, therefore, pass on his property other than to the
legal heirs who are in the normal course and in the absence of a will entitled to receive properties according to the Hindu
Succession Act.
Prior to the coming into force of the Hindu Succession Act, on the death of a male Hindu dying intestate the properties left by
him on his death devolved on his sons as their joint family properties and the daughters of the deceased did not have any share
in the properties, whether the properties were self-acquired or joint Hindu family property in the hands of the deceased, while
after the commencement of the Hindu Succession Act, the self-acquired properties of a male Hindu passes on to his sons,
daughters and wife in equal share and likewise his share in the coparcenary property.
The Hindu Succession Act permits a Hindu male to dispose of his properties by means of a will to any person or persons of his
choice and thus a male Hindu can deprive his daughters by bequeathing his self-acquired properties or his share in the
coparcenary properties to the persons specified by him in his will by means of a testamentary disposition. The male Hindu is
not competent to make a will of his properties without making an adequate provision for the maintenance of his wife and a will
made otherwise shall be voidable at the instance of the wife.
8. The main characteristics of a will
(1) It takes effect after the death of the testator.
(2) It is capable of being modified or altered at any time at the sole discretion of the testator.
(3) The testator is vested with the absolute discretion not only to modify or alter but also to revoke the will altogether during
the life time.
(4) After the death of the testator his last will is to prevail and no person is legally competent to interfere with it or to modify it
in any mode or manner.
(5) Every person whether a male or female who is of the age of majority and has a sound mind is competent to make a will.
(6) Every person whether a male or female can make a will with respect to all matters within his legal domain and in respect of
all properties which are within his disposing capacities.
(7) No stamp duty is payable.
(8) Attestation is necessary by two witness to be present before the Registrar.
(9) The presence of the testator is essential or that of a legatee after his death for purposes of registration of the will.

(10) Registration of will is optional and the registration can be effected even after the death of the testator.
(11) It can be drawn on any ordinary blank paper.
9. Distinguishing features
A will is one of the most important sources of passing properties from the testator to the beneficiary under the will. The
property so passed by means of a will is although without any consideration yet it does not amount to a gift in the legal sense
of the term. Section 122 of Transfer of Property Act defines gift s as a transfer without consideration by one person called the
donor, to another called the donee and accepted by or on behalf of the donee and such acceptance must be made during the life
time of the donor and while he is still capable of giving.
It thus follows that the acceptance by the donee has to be made during the life time of the donor which implies that the donor
and donee must be living persons and a gift is to be completed within their life time and not after the death of either of them.
Whereas in the case of will it comes into operation only after the death of the testator and the acceptance by the beneficiary is
not essential, for the validity of the will it is neither necessary nor required that the beneficiaries under the will should give
their consent, in most of the cases even the bequest made under the will is not made known to the beneficiaries before the
death of the testator.
A gift of immovable properties is necessarily required to be made by a registered instrument, whereas in the case of wills
registration is not at all required, whether the subject-matter of the bequest is movable or immovable.
10. Will to be in writing
Prior to the Hindu Wills Act, 1879, no will was required to be necessarily reduced to writing, the will could be oral or in
writing; even when the will was in writing it did not require to be signed or attested.
11. Special benefits
Will, as expressed earlier, is one of the most important sources of passing property will from the testator to the beneficiary.
The following are some of the special advantages :
(1) No stamp duty is payable irrespective of the value of the property.
(2) It does not tantamount to gift and thus no gift -tax is attracted on the properties passed under a will irrespective of any
value, under the Gift -tax Act.
(3) No registration is necessary. The registration of a will is optional, but it shall be an act of prudence if the document of will
is registered. The document if so registered shall have a better evidentiary value and greater reliance on the genuineness of the
document shall be placed, besides it shall be difficult for any party challenging the validity of the will to establish either
coercion, fraud or any undue influence exercised by any one upon the testator of the will.
(4) The testator continues to remain the absolute owner and master of his properties during his life time with full disposing
capacity and it is only after his death that the transfer or vesting of the properties takes place.
(5) The testator can change his will at any time during his lifetime, if he finds that the person to whom he bequeathed does not
deserve or for any other reason the testator changes his mind in favour of some other person, he is at liberty to change his will,
thus bequeathing the properties to other persons of his choice, since it is only the last will of the testator which alone prevails
and all the earlier wills are superseded.
12. Privileged wills
Any soldier employed in an expedition or engaged in actual warfare (or airmen so employed or engaged) or any mariner being
at sea, if he has completed the age of eighteen years, dispose of his property by a will made in the manner provided in section
66. Such wills are called privileged wills.

Mode of making and rules for executing privileged wills.

(1) Privilege wills may be in writing, or may be made by word of mouth.
(2) The execution of privileged wills shall be governed by the following rules :
(a) The will may be written wholly by the testator, with his own hand. In such case it need not be signed or attested.
(b) It may be written wholly or in part by another person, and signed by the testator, in such case it need not be attested.
(c) If the instrument purporting to be a will is written wholly or in part by another person and is not signed by the testator it
shall be deemed to be his will, if it is shown that it was written under the testator's directions or that he recognised it as his will.
(d) If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed,
the instrument shall not, by reason of that circumstance, be invalid provided that the non-execution of it can be reasonably
ascribed to some cause other than the abandonment of the testamentary intention expressed in the instrument.
(e) If the soldier (airmen) or mariner has written instruction for the preparation of his will but has died before it could be
prepared and executed such instruction shall be considered to constitute his will.
(f) If the soldier (airmen), or mariner has, in the presence of two witnesses given verbal instruction for the preparation of his
will, and they have been reduced into writing in his life time, but he has died before the instrument could be prepared and
executed, it would be considered that such instructions shall constitute his will, although the same may not have been reduced
into writing in his presence, nor read over to him.
(g) The soldier (airmen) or mariner may make will by word of mouth by declaring his intention before two witnesses present at
the same time.
(h) A will made by word of mouth shall be null and void at the expiration of one month after the testator, being still alive, has
ceased to be entitled to make a privileged will.
There is no prescribed from for a will. The necessary ingredient is that it must contain the wishes of the testator in clear and
unequivocal language.
13. Execution and attestation
There are two important legal provisions which have a bearing in the matter of execution and proof of wills, which are
contained in section 63 of the Succession Act and section 68 of the Evidence Act.
Section 63 of the Succession Act which deals with the execution of wills prescribes the following conditions and requirements
in regard to signing and attestation :
(a) The testator shall sign or shall affix his mark to the will, or, it shall be signed by some other person in his presence and by
his direction.
(b) The signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear
that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will, or
(i) has seen some other person sign the will, in the presence and by the direction of the testator, or
(ii) has received from the testator a personal acknowledgment of his signature of mark, or of the signature of such other person;
and
(iii) each of the witnesses shall sign the will in the presence of the testator.
Section 63, in substance, requires the will to be signed by the testator and attested by two or more witnesses, each of whom has
seen the testator sign or has received from the testator a personal acknowledgment of his signature.
It is not necessary that more than one witness be present at the same time, and no particular form of attestation has been
prescribed nor is necessary.

14. Acknowledgment of execution

In Ganshamdoss Narayandoss vs. Gulab Bi Bai AIR 1927 Mad 1054 FB, it was observed that a personal acknowledgment of
execution need not necessarily be restricted to an express statement to that effect, but may include words or conduct, or both on
the part of the testator which may be construed unequivocally as such an acknowledgment.
In Halsbury's Laws of England, third Edn., Vol. 39, Para 1331, it is stated : "It is not necessary for the testator to say "This is
my signature"; acknowledgment may even be by gesture and may be made in answer to a question; but the witness must see, or
have an opportunity of seeing the signature of the testator, and if what takes place involves an acknowledgement by the testator
that the signature is his, that is enough".
In American Jurisprudence 2nd Edn., Vol. 79, Para 263, it is stated "Neither a formal nor an express request is essential, where
the manner and form in which the request must be made are not prescribed by statute. It is not prescribed by statute. It is not
considered necessary for the testator to ask the subscribing witnesses to his will to attest it. The request may be conveyed as the
act of the testator in processing the will to the witness after the testator has signed it.
A constructive request is considered the equivalent of an actual request, in the absence of a statutory provision to the contrary.
The request may be inferred from the circumstances surrounding the signing of the instrument.''
15. Proof of execution
Section 68 requires that a document required by law to be attested shall not be used as evidence until one attesting witness at
least has been called for the purpose of proving its execution.
This provision, of course, is subject to the physical existence and physical capability of attesting witness so that on being
examined he may be able to prove the will.
It is not the law that in case the attesting witnesses are no longer in existence or are incapable of giving evidence, it would not
be possible to prove the will at all. There are various modes of proving documents. What is the proper mode of proof depends
upon the facts of a particular case. In short, the proper mode is the one which satisfies the conscience of the Court, which is the
yardstick of the tests.
In case, both the attesting witnesses turn hostile or in a case where the two witnesses had not attested the will at one and the
same time or one of them turns hostile, the will can still be proved on a consideration of the surrounding circumstances and the
weighment of evidence.
The case law discussed hereinafter shall throw light as to the inference drawn and the conclusion arrived at by the Court in
such circumstances :
(i) In Lloyd vs. Roberts XII Morre 158 (1901) Eng. Reports, Vol. 14, the facts were that out of the two attesting witnesses of
the will, only one had survived to speak about the will in Court and he stated that he had been called to attest the document
which was described as a will and he attested the document which was presented to him folded in a particular fashion so that
he could only see the signature of the testator and put his own signatures as attesting witness, implying thereby that he did not
know as to what the document was nor the testator had appended his signatures in his presence.
It was pleaded that the testator might have written in the attestation clause afterwards; and then it was inferred from that, that
he might also have written the will afterwards; then in point of fact these persons signed their names to a blank in all respects,
except the name of the testator.
The Court found that the testator was a solicitor who must be accredited with proper knowledge in regard to signing and
attestation of wills. It also found that the witness has come into the witness box after seven years of the making of the will.
After propounding the question "what is the conclusion at which the Court must arrive". It was observed : "the will bears date,
the 8th July, 1950 and therefore, it is seven years since it was executed. There seems to have no imposition upon the testator in
any respect nor it was suggested that there was any such imposition.
The testator, too, being a solicitor must have known that it was necessary for a will to be written before execution; and the
Court came to the conclusion that a person in his situation who had nothing to conceal from any body about his will, shall not
execute a blank sheet of paper and thus concluded that the deceased did sign this will; and then he sent for two witnesses to
attest it, and that he acknowledged his signature in their presence.
(iii) The Division Bench of the Calcutta High Court in Brahmadatt Tewari vs. Chudan Bibi AIR 1916 Cal 374 observed :

"The principle is well settled that when the evidence of the attesting witnesses is vague, doubtful or even conflicting upon
some material point, the Court may take into consideration the circumstances of the case and judge from them collectively
whether the requirements of the statute were complied with, in other words, the Court may, on consideration of the other
evidence or the whole circumstances of the case, come to the conclusion that their recollection is at fault, that their evidence is
of a suspicious character or that they are wilfully misleading the Court and, accordingly, disregarded their testimony and
pronounce in favour of the will."
It is thus found that neither the absence of the attesting witnesses nor their hostility can defeat a will executed by the testatory
without undue influence or corceion.
16. Tax planning
Before discussing tax planning, let us have a fair idea of the testator's right, competency and the necessity and occasion for
making more than one will. A person is at liberty to make any number of wills, there can be more than one will covering
different properties or expressing and declaring different wishes of the testator, bequeathing separate properties to different
persons and at different points of time.
There is a misnomer that it is only the last will which prevails, but this principle is only applicable when the subject-matter of
the will is same and after writing the earlier will, the testator changes his mind as a result of which the testator makes a
subsequent will which reverses and supersedes its earlier decision and thus bequeaths the same property to some person other
than the one named in the earlier will.
The principle that the last will has to prevail is not applicable in the cases when a testator makes different wills at different
points of time dealing with different subject-matters, for it is not at all necessary for a testator to bequeath all his estate or
express his entire wish in one single document at any given time.
The testator is well within his right to confine himself to a particular estate, this confinement of the subject-matter is often seen
in the cases of the sale of properties through power of attorney, in such cases the document of sale is invariably not registered
and there is merely an agreement of sale coupled with the handing over the possession of the property against payment of
consideration either in part or in full and the document of will is executed in order to safeguard the interest of the intending
purchaser and also to complete his title to the property which is the subject-matter of sale.
The legal proposition is that a title to an immovable property does not pass from the seller to the buyer unless the same is by
means of a registered sale deed, while a mere agreement to sale does not pass the title to the purchaser. The object is thus
achieved by means of a will of the seller who bequeaths the property in favour of the purchaser.
The writing of separate wills in favour of different legatees, besides achieving other objects, further safeguards and protects the
testator from the disclosure of all his assets to all the legatees. The legatee who is bequeathed a particular property has to apply
for probate only and exclusively in respect of the specified property which is covered under the will, since in the proceedings
for obtaining the probate the entire estate of the deceased is not required to be disclosed, the legatee or the executer of the will,
if any named, are thus entitled to apply for the grant of probate upon the specified bequest covered under the will which
implies that probate is to be granted by the Court only in respect of the property which is covered by the will and the Court is
not concerned with any other property of the deceased.
On the other hand in the case for the grant of succession certificate the legal heirs are supposed to disclose the entire estate of
the deceased and the legatees are necessarily all those persons who are entitled to inherit the estate of the deceased according to
the law of inheritance applicable to the deceased.
It has already been discussed earlier that the Hindu Succession Act has enlarged the disposing capacity of a male Hindu
inasmuch as he is competent to dispose of not only self-acquired properties but also his share in the coparcenary property.
Will can be made in favour of any person and a legatee can, therefore, be a society, trust, company, individual, association of
person and a Hindu undivided family, or a combination of any one or more of them.
Any testator whether a male or female can so plan and devise his bequest in a manner which can be beneficial from the tax
angle, so as to attract the minimum amount of tax or even avoiding the incidence of tax altogether in the hands of the legatees.
Properties can thus be passed on to a trust enacted under the will for the benefit of the specified beneficiaries with ascertained
shares. It can also be fruitfully passed on to the joint Hindu family of the sons of the testator, thus providing each of them a
separate assessable entity for the purposes of Income-tax and Wealth-tax Act.
In a case where the testator's sons are already existing assessees in their capacity as individuals as well as joint Hindu family,
the testator can bequeath his properties to the grandsons or when the estate is large enough then bequeath partly to the wives of

the son and partly to the grandsons. The result being that after the testator's death a number of additional entities come into
existence for purposes of assessment to tax as separate and distinct assessable units both under the Income-tax and Wealth-tax
Acts.
It will thus be seen that the passing of the properties under a will can be fruitfully used as a tax planning measure though there
cannot be a readymade formula which may suit all persons. The bequest is to be devised according to the specific
circumstances of each case and a tax planner has to take into consideration the composition of the testator's family, the nature
of the properties to be bequeathed and the wish of the testator and then guide his client to devise the bequest which is most
suitable to his circumstances.
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