A fundamental characteristic of property is that it cannot exist without an owner. On a person’s death his property has to vest into someone and the act of transmission of the property is referred to as succession. The law of succession is categorized as testamentary and intestate succession.
When a person makes a
will disposing of his property it is governed by the law of testamentary
succession.
In cases where a will
has not been made then the law of intestate succession kicks in and his
property is acquired by his heirs as per intestate law. The most comprehensive law
dealing with rules of succession is Indian
Succession Act 1925 (“Act”). The objective of
the Act is to consolidate the law applicable to intestate and testamentary
succession. According to section 58
of the Act, provisions of this Act relating to ‘Testamentary Succession’ shall
constitute the law of India applicable to all cases of testamentary succession
except those of Muslims.
Will
Making a Will helps to
ensure that one’s property devolves as wished and the right heirs receive their
fair shares. A will is a legal declaration for a voluntary posthumous
disposition of property. Under Section
2 (h) of the Act, 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.
Essential
characteristics of a will are:
- There must be an
intention for the testament to take effect after the testator’s death. - It should be a legal
declaration of intention with respect to property (the declaration is not
fulfilled if the forms and formalities prescribed by the law and not
fulfilled). - The declaration with
respect to the property must involve a disposition of property and not the mere
appointment of a successor.
Indian Christian
As
per Section 2 (d) of the Act, “Indian Christian” is a native of India
who is, or in good faith claims to be, of unmixed Asiatic descent and who
professes any form of the Christian religion. The High court of Karnataka in M.A.I. Kovoor vs. Thomas Ipe Kovoor and Ors[1]
said that all the members of the family being Indian Christians, the case is to
be covered by the provisions of the Indian Succession Act, 1925. Thus, as such, Christians
in general are governed by the Indian Succession Act of 1925 for succession
purposes.
Provisions under the Act
A will is the
expression by a person of wishes which he intends to take effect only at his
death. In order to make a valid will, a testator must have a testamentary
intention i.e. he must intend the wishes to which he gives deliberate
expression to take effect only at his death. Chapters II to VI of the Act comprehensively deal with all issues
connected with wills and codicils.
- Person
capable of making wills:
According to section 59 of the Act, every person of
sound mind not being a minor may dispose of his property by will. The explanations
to this Section further expand the ambit of testamentary disposition of estate.
A married woman may dispose by will of any property which she could alienate by
her own act during her life. Further, persons who are deaf or dumb or blind are
not thereby incapacitated for making a will if they are able to know what they
do by it. A person who is ordinarily insane may make a will during interval in
which he is of sound mind. Lastly, no person can make a will while he is in
such a state of mind, whether arising from intoxication or from illness or from
any other cause that he does not know what he is doing. Soundness of mind and
freedom from intoxication or any illness that render a person incapable of
knowing what he is doing are also laid down as prerequisites to the process.
However subsequent
insanity does not make the Will invalid i.e. if a person makes a Will while he
is of sound mind and then subsequently becomes insane the Will is valid and is
not rendered invalid by subsequent insanity.[2]
- Testamentary
guardian
As
per section 60 of the Act , a father, whatever his age may be, may by will
appoint a guardian or guardians for his child during minority. Though the
burden of proof to prove that the will was made out of free volition is on the
person who propounds the will, a will that has been proved to be duly signed
and attested will be presumed to have been made by a person of sound mind,
unless proved otherwise. Further, a bequest can be made to an infant, an idiot,
a lunatic or other disqualified person as it is not necessary that the
legatee should be capable of assenting it.
- Codicil
“Codicil”
means an instrument made in relation to a Will, and explaining, altering or
adding to its dispositions, and shall be deemed to form part of the Will.
(Section 2(b) of the Act)
- Void/Invalid
Wills - Will
obtained by fraud, coercion or importunity
A
will or any part of a will, the making of which has been caused by fraud or
coercion, or by such importunity as takes away the free agency of the testator,
is void. (Section 61 of the Act)
- Will
or bequest void for uncertainty
A
will or bequest not expressive of any definite intention is void for
uncertainty. (Section 89 of the Act)
- Bequest
contingent upon specified uncertain event, no time being mentioned for its
occurrence
Where
a legacy is given if a specified uncertain event shall happen and no time is
mentioned in the will for the occurrence of that event, the legacy cannot take
effect, unless such event happens before the period when the fund bequeathed is
payable or distributable. (Section 124 of the Act)
- Bequest
upon illegal or immoral condition
A
bequest upon a condition, the fulfilment of which would be contrary to law or
to morality is void. (Section 127 of the Act)
- Privileged
and unprivileged will
Privileged wills are those that can be made my members of the
armed forces employed in an expedition or engaged in actual warfare and can be
made in oral form as well. Unprivileged
wills are the wills that
can be created by every person other than those who can create a privileged will. (Section 63 and 65)
Mode
of making, and rules for executing, privileged wills: (Section 66)
(1)
Privileged 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
- The
will may be written wholly by the testator, with his own hand. In such case it
need not be signed or attested.
- It
may be written wholly or in part by another person, and signed by the testator.
In such case it need not be attested.
- 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 by the testator’s directions or that he
recognized it as his will. - 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 his non-execution of it can be
reasonably ascribed to some cause other than the abandonment of the
testamentary intentions expressed in the instrument.
- If
the soldier, airman or mariner has written instructions for the preparation of
his will, but has died before it could be prepared and executed, such
instructions shall be considered to constitute a will.
- If
the soldier, airman or mariner has, in the presence of two witnesses, given
verbal instructions for the preparation of his will, and they have been reduced
into writing in his lifetime, but he has died before the instrument could be
prepared and executed, such instructions shall be considered to constitute his
will, although they may not have been reduced into writing in his presence, nor
read over to him.
- The
soldier, airman or mariner may make a will by word of mouth by declaring his
intentions before two witnesses present at the same time.
- A will made by word of
mouth shall be null at the expiration of one month after the testator, being
still alive, has ceased to be entitled to make a privileged will.
Execution of unprivileged wills (Section 63):
- 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. ( - 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. - 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 has seen some other person sign
the will, in the presence and by the direction of the testator, or has received
from the testator a personal acknowledgment of his signature or mark, or of the
signature of such other person; and each of the witnesses shall sign the will
in the presence of the testator, but it shall not be necessary that more than
one witness be present at the same time, and no particular form of attestation
shall be necessary.
- Revocability
and Alterations
Section
62 of the Act deals with the characteristic of a Will being revocable or
altered anytime during the lifetime of the testator. 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.
- Revocation of will by
testator’s marriage (Section 69 )
Every
will shall be revoked by the marriage of the maker, except a will made in
exercise of a power of appointment, when the property over which the power of appointment
is exercised would not, in default of such appointment, pass to his or her
executor or administrator, or to the person entitled in case of intestacy. It
means where a man is invested with power to determine the disposition of
property of which he is not the owner, he is said to have power to appoint such
property.
- Revocation of
unprivileged will or codicil (Section 70)
No
unprivileged will or codicil, nor any part thereof, shall be revoked otherwise
than by marriage, or by another will or codicil, or by some writing declaring
an intention to revoke the same and executed in the manner in which an
unprivileged will is herein before required to be executed, or by the burning,
tearing, or otherwise destroying the same by the testator or by some person in
his presence and by his direction with the intention of revoking the same.
- Revocation of privileged
will or codicil (Section 71 )
A
privileged will or codicil, may be revoked by the testator by an unprivileged
will .or codicil, or by 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, or by some person in his presence and by his direction, with the
intention of revoking the same. In order to the revocation of a privileged will
or codicil by an act accompanied by such formalities as would be sufficient to
give validity to a privileged will, it is not necessary that the testator should
at the time of doing that act be in a situation which entitles him to make a
privileged Will.
- Construction
of Wills
It
is not necessary, that any technical words or terms of art be used in a will,
but only that the wording be such that the intentions of the testator can be
known therefrom. (Section 74 )
Another
general principle applied is that the Will is to be so read as to lead to a
testacy and not intestacy that is if two constructions are possible then the
construction that avoids intestacy should be followed.
- Void
Bequeaths
- Transfer
to unborn persons is invalid (Section 113)
Where
a bequest is made to a person not in existence at the time of the testator’s
death, subject to a prior bequest contained in the will, the later bequest
shall be void, unless it comprises the whole of the remaining interest of the
testator in the thing bequeathed.
- Transfer
made to create perpetuity (Section 114)
No
bequest is valid whereby the vesting of the thing bequeathed may be delayed
beyond the life-time of one or more persons living at the testator’s death and
the minority of some person who shall be in existence at the expiration of that
period, and to whom, if he attains full age, the thing bequeathed is to belong.
- Bequest
to a class some of whom may come under rules in sections 113 and 114 (Section
115)
If a bequest is made to a class of persons
with regard to some of whom it is inoperative by reason of the provisions of
section 113 or section 114, such bequest shall be void in regard to those
persons only, and not in regard to the whole class.
- Bequest
to take effect on failure of prior bequest (Section 116)
Where
by reason of any of the rules contained in sections 113 and 114, any bequest in
favour of a person or of a class of persons is void in regard to such person or
the whole of such class, any bequest contained in the same will and intended to
take effect after or upon failure of such prior bequest is also void.
Registration of a will
In India, registration
of Wills is not compulsory. A Will is not a compulsorily registerable document
under section 17 of the Registration Act, 1908, (Act), and according to section
18 (e) it is the testator’s choice as to whether he wishes to register it.
There is no stamp duty payable. But if one chooses to register a Will with the
applicable registrar/sub-registrar of assurances, the registration provides evidence
that the proper parties had appeared before the registering officer and the
latter had attested the same after ascertaining their identity. Once a Will is
registered, it is placed in the safe custody of the Registrar and cannot be
tampered with, destroyed, mutilated or stolen. However, non-registration of a
Will does not lead to any inference against its genuineness. It doesn’t have to
be executed before a notary public.
By
Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Email id: vpdalmia@gmail.com
Mobile No.: +91 9810081079
Linkedin: https://www.linkedin.com/in/vpdalmia/
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Twitter: @vpdalmia
[1] MANU/KA/1766/2016
[2] http://www.legalserviceindia.com/articles/will_hindu.htm