TAMILNADU NATIONAL LAW SCHOOL

TIRUCHIRAPALLI

FAMILY LAW II

PROJECT PRESENTATION- Wills and Willings

FOURTH SEMESTER 2016

PRAVEEN.C

BA0140041

DECLARATION OF AUTHORSHIP
I, PRAEEN.C hereby declare that this project titled submitted to Tamil Nadu National Law
School, Tiruchirappalli, is the record of a bona fide work done by me under the expert
guidance of the venerated family law faculty of Tamil Nadu National Law School,
Tiruchirappalli.

All authentic information furnished in the project is true to the best of my knowledge and
belief.

Submitted to: Asst. Prof. Deepika

Submitted by: PRAVEEN.C

 WILL under Indian succession Act 1925

INTRODUCTION

Will is the legal declaration of a persons intention which he wishes to be

performed after his death and once the Will is made by the testator it can only be revoke
during his lifetime.
Indian succession Act 1925 is the main law in India which governs the will made by
person other than the Muslims.

Issue

Whether the testator can make the ancestors property as a will?

A person cannot give his ancestors property in the form of a Will but he
have right to make a Will only of his Self-Acquired property. A Will does not involve any
transfer, nor affect any transfer inter-vivos, but it is an expression of intending to appoint a
person who will look after the properties after his (Testator) death. A Will regulates the
succession and provides for succession as declared by the testator.

Whether the testator can revoke a will?

Yes he can revoke the will during his life time and also he has power to codicil and
produce new will he has the power to write the will to any of his heirs. So he has the absolute
power to revoke the will.

Historical Background of Wills:

As the time rolled the appearance of the Will become more popular, Indian
Law which is governed under section 5 of "The Indian Succession Act, 1925" which gives
different rules to intestate succession and testamentary succession in India. It applies to all
the communities in India but except the Muslim community. In India there is a well
developed system of succession laws that governs a persons property after his death. 'The
Indian Succession Act 1925 applies expressly to Wills and codicils made by Hindus,
Buddhists, Sikhs, Jains, Parsis and Christians however not to Mohammedans as they are
generally secured by Muslim Personal Law. After the first day of sep 1870 within the
erstwhile province of Bengal or within the local limits of the ordinary original civil
jurisdiction of the high court of judicature at Madras and Bombay and to all such will and
codicils made outside the above territories and limits so far as such will and codicils relates to
improvable property situtate within the territories or limits mentioned. Where all wills and
codicils made by any hindu, Buddhist, sikh or jaina on or after the first day of January, 1927
to which those provision are not applied by clause (a) and (b)1.
1 sec 57 of Indian succession Act 1925
Legal Definition of Will:

The term Will is defined under Section: 2(h) of The Indian Succession
Act, 1925, 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. A testator is authorised with
a power to appoint any person as beneficiary of his Will whereas Section: 5 2 deals with the
law regulating succession to deceased person moveable and immovable property

Meaning of will:
A Will or testament is a legal declaration by which a person, the testator,
names one or more persons to deal with his/her bequest and provide for the transfer of his/her
property at the time of death. A Will can be made by anybody above 21 years old in India. A
Will is an statement made by a testator in the written form stating the manner in which his
estate/property must be distributed after his death. A Will being a testamentary record
becomes effective after the death of the testator and if the individual dies without writing any
Will then he is said to be have died intestate. The person in whose favour the testator bestows
the benefits called beneficiary or legatee. A Will is otherwise called as Testament

Features of A Valid Will:

There are certain characteristics which should be included in the instrument of will
such as :-

i) The Name of the Testator:

The name of the testator should be mentioned accurately without any

error in initials, spelling or grammatical mistake so that it will not affect the instrument of
Will. The name of the testator can also be clarified by looking into his birth certificate or
any school certificates.

ii) Right To Appoint Legatee:

The testator is having supreme right to select any individual as a legatee or

recipient of a Will and legatee should execute the Will carefully and accordance with law.

iii) To Take Effect After Death:

A testator who is having power to make the Will during his lifetime, but it

2 Indian succession Act 1925

will take effect only after his death. A gift made by a person during his lifetime and will take
effect during his lifetime, cannot be considered as a Will.
iv) Revocability Under The Law:

In general a Will made by the testator can be revoke at any time during his lifetime and
testator can choose any other person as his legatee. There may be chances where a testator
wishes to bring some alterations in the Will then he can make some necessary amendments in
the prepared Will which is otherwise called as Codicil. A third party can not file a civil suit
against the testator on the ground of cancellation

v) Revocability Under The Law:

In general a Will made by the testator can be revoke at any time during his lifetime and
testator can choose any other person as his legatee. There may be chances where a testator
wishes to bring some alterations in the Will then he can make some necessary
amendments in the prepared Will which is otherwise called as Codicil. A third party can
not file a civil suit against the testator on the ground of cancellation of the Will. A Will
made by the testator may be irrevocable in some cases where an agreement is entered into
contrary to the Will, may bind the testator.

Modes of revocation of will:

Sec 70 gives the accompanying modes to the motivation behind disavowal of will

1. Subsequent marriage of the testator

2. Subsequent will or codicil
3. Instrument of revocation
4. Destruction of the will

1. Subsequent marriage of the testator

As per sec 69 a husbands will in favour of his wife it become revoked on his
subsequent marriage. It is done by the operation of law . be that as it may it is liable to a
special case. If the will was made in exercise of power of appointment i.e. a power to dipose
of property of someone els the will would be unaffected by the testators marriage

2. Subsequent will or codicil:

As per the sec 70 a will may be revoked by another making
another will or codicilor by some writing declaring an intention to revoke the same. If a later
will or codicil contains a clause revoking the previous will or if it makes dispositions so
inconsistent with the earlier will that the two cannot a stand together the previous will stands
revoked
3 Instrument of revocation:
According to sec 70 a will may be revoked by some writing declaring an
intention to revoke the same and executed in manner in which a will is required to
be executed

4. Destruction of the will;

According to sec 70 a will may be revoked by destroying the will with the intention
to revoking it. It should be destroyed either by the testator himself or in his presence by some
other person under the testators direction.

Intention of The Testator supreme:

The testator of the Will has right to revoke Will at any time which can only be
proved by the intention of the testator that whether he is intending to revoke the previous
testamentary instruments made by him or he can state in his Will that This is my last Will
then it can be presumed that all the earlier testamentary instruments has been revoked.

The Declaration to be 'Last Will':

A person as testator has power to make declaration of Will unnumerable times but it
is always the last will of testator which will prevail. The words I declare this to be my last
will need not be stated in the instrument of the Will. Once the Will is made by the testator
Inserting of words Last and Only will at the time of death it can be presumed that all the
previous Wills will get revoked and fresh Will has to be effected.

Lost Subsequent 'Will':

Minor loss of the first Will does not work a revocation but rather it must be deducing
by the stringent proof to demonstrate its revocability and a testator must demonstrate the bona
fide purposes behind the loss of the Will. When it is demonstrated that a unique will is lost
then 'subsequent Will' will be valid.

Kinds of Wills:
A testator who has right to make a Will for the future benefits of his family
members which will take effect after his death, the there are certain types of Wills which has
to be looked into:

1. Privileged 'Wills':

According to sec 65 as it can be understood from the word privilege provided

to certain persons. A privileged Will is one which is made by any soldier, airman, navy
persons, mariner who are willing to dispose of their estate during their course of
employment. A soldier includes officers and all other rank officers of service but does not
 include a civilian engineer employed by the army, having no military status. A soldier
while making an instrument of Will must have attained the age of 18 years and where a
will made by the soldier is in the oral form, will be valid only for a month though a written
Will always remain operative. A privileged Will may be revoked by the testator by an
unprivileged Will or codicil, or buy any act expressing an intention to revoke it and
accompanied by such formalities as would be sufficient to give validity to a privileged
Will, or by the burning, tearing or otherwise destroying the same by the testator.3

2. Unprivileged 'Wills':

Wills executed by procurements of succession 63 4 of the 'Indian Succession

Act, 1925' are called Unprivileged Wills. An unprivileged Will is one which is created by
every testator not being a soldier, airman, mariner so employed. An unprivileged Will like
Codicil can be revoked by the testator only by another Will or by some writing declaring an
intention to revoke the same and to be executed in the manner in which an unprivileged Will
can be executed under the Act or by burning, tearing or destroying of the same by the testator
or by some other person in his presence and by his directions with the intention of revoking
the same.
Daulat Ram v. Sodha & Ors5

The court held that even though the second will was marked thumb impression instead of
signature it has been proved to be genuine and validly executed and earlier willstands
revoked it cannot be given effect to.

Savithri and others v. karthayayani Amman and others6

The testator was a cancer patient. He lived with his sister in his last day. Even though he
bequeathed the property to his nephew and executed a registered will in their favour.
Thereafter lived for seven year and never intended to revoke the will. The will was held to be
valid.

Who Can Make 'Will':

Every person who is competent to contract may make a will but he must be
major, sound mind and willing to write a Will. Any person who is the sole owner of a self-

3 http://www.vakilno1.com/wills/types-of-wills.html

4 Indian succession act 1925

5 Daulat Ram v. Sodha & Ors on 16 nov, 2004

6 AIR 2008 sc300

acquired property can bequeath by way of will. A person of unsound mind can also make a
will but only in lucid intervals. A Will cannot be made by some persons i.e. minors, insolvent,
perspersons disqualified under any law by the court. A Will executed by a minor is void and
inoperative though a testamentary guardian can be appointed for the minor to dispose off the
property. A Will can be made by the deaf and dumb person by showing consent through
writing or gestures in sign language. Nothing prevents a prisoner or alien in India from
drawing a Will.

For Whom The "Will" Can Be Made:

Any person capable of holding property can be a legatee under a will and therefore a
minor, lunatic, a corporation, a Hindu deity and other juristic person can be a legatee.
Sections 112 to 117 of Indian Succession Act, 1925 put some restrictions on the disposition
of property by will in certain cases. Dispositions of property by will in some cases have been
declared void. If the minor person has been named as legatee by a testator then a guardian
should be appointed by the testator himself to manage the bequeathed property.7

Will obtained by fraud

Sec 61 of ISA 1925 says that a will or any of a will the making of which has been
caused by fraud or coercion or by such importunity as takes free agency of the testator is void

Illustration
A falsely and knowingly represents to the testator that the testators only child is died or that
he done some undutiful act and thereby induces the testator to make a will in his As favour
such will has been obtained by fraud and the will is invalid

What Can Be Bequeath In A 'Will':

Any movable or immovable property can be disposed off by a will by its owner, that
property must be a self acquired property of that person and it should not be an ancestral
property of the testator. According to Section: 30 of Hindu Succession Act, 1956 provides
that any Hindu may dispose off by will or other testamentary disposition any property, which
is capable of being so, disposed of by him in accordance with law.

General Procedure To Make A 'Will':

A Will should be prepared with utmost care and must contain several parts to make
a complete Will though there is no defined format for making a Will but a general procedure
7 http://www.helplinelaw.com/real-estate-wills-probate-and-trust/WISA/wills-
under-indian-succession-act-1925.html
should be adopted while writing a Will by the testator which includes:

1.Declaration in the Beginning:

In the first paragraph, person who is making a Will, has to declare that he is
making this Will in his full senses and free from any kind of pressure and undue influence
and he has to clearly mention his full name, address, age, etc at the time of writing the Will so
that it confirms that a person really wishes to write a Will.

2. Details of Property and Documents:

The next step is to provide list of items and their current values, like house,
land, bank fixed deposits, postal investments, mutual funds, share certificates owned by
testator. He must also state the place where he has kept all the documents if the will
documents are under safe custody of the bank then testator has to write details about the
releasing of the Will from the bank. Here it is the most important duty of the testator to
communicate the above matter to the executor of the Will or any other family members,
which will make the Will valid after testator death.

3. Details of ownership By the Testator:

A testator while making an original Will should specifically mention that
who should own his entire property or assets so that it will not affect the interest of the
successors after his death. If testator wishes the name of the minor as beneficiary then a
custodian of the property should be appointed to manage the property.

4. Attestation of the Will:

At the end, once the testator complete writing his Will, he must sign the will
very carefully in presence of at least two independent witnesses, who have to sign after his
signature, certifying that the testator has signed the Will in their presence. The date and place
also must be indicated clearly at the bottom of the Will. It is not necessary that a person
should sign all the pages of the Will instrument but he must sign to avoid any legal
disturbances.

Execution of A Will:
On the death of the testator, an executor of the Will 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 will grant 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. In case any objections are raised by any of the heirsa citation
has to be served, calling upon them to consent. This has to be displayed prominently in the
 court. Thereafter, if no objection is received, the probate will be granted and It is only after
that Will comes into effect.

Registration of Wills:
According to the Section: 18 8 of the Registration Act, 1908 the registration of a
Will is not compulsory. Once a Will is registered, It is a strong legal evidence that the proper
parties had appeared before the registering officers and the latter had attested the same after.
The process of registration begins when a Will instrument is deposited to the registrar or sub-
registrar of jurisdictional area by the testator himself or his authorised agent. Once the
scrutiny of Will instrument is done by the registrar and registrar is satisfied with all the
documents then registrar will make the entry in the Register-Book by writing year, month,
day and hour of such presentation of the document and will issue a certified copy to the
testator. In case if registrar refuses to order Will to be registered then testator himself or his
authorised agent can institute a civil suit in a court of law and court will pass decree of
registration of Will if court is satisfied with the evidence produced by the plaintiff. A suit can
only be filed within 30 days after the refusal of registration by the registrar. If the testator
willing to withdraw the Will after the process of registration then a sufficient reason has to
be given to registrar, if satisfied he will order for the registration of Will.

Codicil Means Addition or supplement

Codicil is an instrument made in relation to will and explaining, altering or
adding to its dispositions. It explains the nature and character of the change made in the will .
though it is considered to be a supplement to a will it can also exist independently. Thus a
codicil may take effect even without will. Will is defined as below

Purpose of codicil
Sometime the maker of a will may prefer to alter or amend the will executed by him.
Law permits the maker to make alteration to the will.

Revocation of codicil
According to sec 70 a codicil, nor any part thereof shall be revoked otherwise than by
marriage or by marriage or by other will or codicil or by some writing declaring an intention
to revoke the same. The testator revoke it in the same way by which a will can be revoked.
For example A has made an unprivileged will. Afterwards A makes another unprivileged will
for revoke the first will. This is the revocation of codicil. 9

Void Wills

8 Registration Act, 1908

9 Family law II,. Indian succession act 1925 pag 58 by Dr.RD. vijayasekhar
 The void will is explain according to sec 89 of ISA 1925 says a will or bequest not
expressive of any definite intention is void for uncertainty. If the testator says I leave to A all
the goods mentioned in the schedule and where there is no schedule is found in the will so it
is void will.

The following will are void

1) A will which does not express any definite intention is void for uncertainty
2) A will becomes void when it is properly revoked
3) A will become void for want of testamentary capacity

Revocation of Wills:
A Will is liable to be revoked or altered by the maker of it at any time when he is
competent to dispose of his property by Will 10. A Will can be revoked by testator of the Will
at any point of time which can be classified into two aspects such as:-
i) Voluntary Revocation:
A testator who wishes to revoke his original Will which is made by him on a
specified date and time, he can make revocation of the will himself by writing a subsequent
Will or codicil duly executed and by destruction of the previous will, means by burning,
tearing, destroying or striking out the signature of the original instrument of a Will.

ii) Involuntary Revocation:

According to the Section:69 of the Indian Succession Act, 1925 which deals with
revocation of will by the testators marriage, however this provision does not apply to
Hindus. Section 57 of the Indian Succession Act clearly states that a testators marriage will
not make the Will invalid.

Probate:

It is the duplicate of the will which is given to the agent together with a
testament allowed under the seal of the court and marked, by one of the recorders, confirming
that the will has been demonstrated. The application for probate should be made by request
alongside duplicate of last Will and confirmation of the expired to the court of capable ward.
The duplicate of the will and allow of organization of the testator's domain together, frame
the probate. It is indisputable confirmation of the legitimacy and due execution of the will
and of the testamentary limit of the testator. A probate is gotten to verify the legitimacy of the
will and it is the main appropriate confirmation of the agent's arrangement. The award of
probate to the agent does not present upon him any title to the property which the testator
himself had no privilege to arrange off which belonged to the testator and over which he had
an arranging power with a stipend of organization to the home of the testator. Probate
procedures can't be alluded to Arbitration. The probate court (whether it is the District Court

10 http://www.lawyersclubindia.com/articles/Succession-Laws-
6047.asp#.VwiGffmx2IU
or High Court) has been allowed and consulted with selective purview to concede probate of
a Will of the expired.

According to sec 222 probate can be granted only to the executor appointed ,
expressly or impliedly, by will. An application for probate is made by a petitioner to the
district judge within whose jurisdiction the tstator at the time of his death had a fix place of
abode or had left some part of his property.
According to sec 219 says the deceased has died intestate and was not a person
belong to any of the classes referred to in sec 218 those who are connected with him either by
marriage or by consanguinity are entitled to obtain letter of administration of his estate. Thus
those who stand in equal degree of kindred to the deceased are equally entitled to
administration

Effect of probate
According to sec 223 the prodate cannot be granted to any person who
is minor, unsound mind or to any association of individual . the sec 227 says probate of a will
when graned estabilishes the will from the death of the testator and render valid all
intermediate act of executor

Sunil gupta v. kiran girhotra and ors 11

In this case the court held that the parties have no right to transfer the property mentioned
under a will when probate proceeding are pending are pending before the court.

EXECUTOR OR ADMINISTRATOR

Executor it define in sec 2(c) says executor as a person to whom the execution
of the last will of a deceased person is by the testator appointment confided. Thus executor
means a person appointed by a testator in his last will with an intention to dispose his
properties according to his intentions or directions.he also known as administrator.

Power of the executor or administrator;

1. Power of executor or administrator to dispose of property
1. Power to mortgage, charge or transfer by sale, gift, exchange
2. Power to lease any such property for a term exceeding 5 years
3. Power of expenditure for the proper care or management
4. Power to promote religious charitable and other objects

11 AIR 2008 SC 140

John vallamattom v. union of India12

The court says that a Christian cannot make a bequest for religious or charitable purpose
without satisfying the condition and procedure prescribed by sec 118 of the act is
unconstitutional and is liable to be struck down as unconstitutional.

Own cases
Thomas (grandfather) was Christian had died in 31 st dec 2013 in his youngest
son home and he left a will which was registered. where Thomas has 4 legal heirs 1 wife, 3
sons. The Thomas was on dialysis from last 4 years and his potassium level were very high
and he suffered sever on the date of will making where his potassium level is very high due
to his high level he became mental dis balance and he has written the age of all heirs in
wrongly. In the will he said after his death his separate property goes to my youngest son.
Even Though the youngest son who did not see or did not take care of him during the course
of dialysis since last 3 1/2 yrs, the will says that except the youngest son no one took care of
him so he has made a will for the entire property should be given to the youngest son . this
will was kept in confidential from all the other heirs and the original was retained with the
youngest son whom it is favouring. It was brought to notice only after the death.13

Issue
Whether the Thomass Will is valid?
The Indian succession says where at the time of writing will he must be in mentally present
under the ground of where he has written the age of all heirs in wrongly. the will may be
become void.

LATEST CASE:

MS. M.A.I. KOVOOR ALIAS ANNA KOVOOR Appellant

Vs.

12 2003 AIR SC

13 Sheikh anis ahamad v. state & ors on 16th march 2011

 MR. THOMAS IPE KOVOOR (JUNIOR) AND OTHERS Respondent

( Before : L. Narayana Swamy, J )

Probate Civil Petition No. 7 of 2011

Decided on : 01-03-2013

Succession Act, 1925 Section 218, 278

Indian Succession Act, 1925 Sections 278, 218 Application for granting of joint letters
Petition has been filed under Part IX, Chapter IV, Section 278 read with Section 218 of the Indian
Succession Act, 1925. The prayer made in the petition is to grant letters of Administration to the
petitioner to the estate of the deceased as she is the legal heir and one of the next kin of the deceased
The parties belong to Christian community and Section 218 of Indian Succession Act is
inapplicable. The petition is not maintainable Petition stands dismissed.