A person acquires many things during his entire lifetime which he/she wants to pass on to his children. During a lifetime, a person does not only acquire morals or rituals but also acquires property (movable or immovable). A person can transfer all of their property, or some of it, to his legal heirs or to any other person, by way of a will only after his death as a will is only executed after the death of the testator. A will may include anything which is of valuable nature be it cars, land, jewelry or other assets which the person wants to transfer. A will does not include the things which are not legally owned or earned by the person who is transferring the assets.
The origin and growth of will was unknown amongst Hindus in earlier times but its need was recognized after the enactment of the Indian Succession Act, 1925. This Act only deals with the wills made by a Hindu, Buddhist, Sikh or Jain. It does not cover the concept of property transferred by a Muslim person as that is governed under Muslim law.
1. Key Words to be Noted
- Will: 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.
- Testator: the person who makes a will.
- Beneficiary: the person in whose favor the will is made.
- Executor: a person to whom the execution of the last will of a deceased person is, by the testator’s appointment, confided. It means that the person who executes the will by the consent of the testator.
- Codicil: 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. Its purpose is to record the small changes that are being made in the will which has already been executed.
- Probate: the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator.
2. Will under the Indian Succession Act, 1925
This Act only deals with the will made by Hindus, Sikh, Jain or Buddhist. Part VI of the Act, from section 57 – 111 deals with the provision related to will under Testamentary Succession.
2.1 Types of Wills
Under this Act there are generally two types of wills that are followed. They are:
2.1.1. Unprivileged will
It is not defined under the Indian Succession Act, 1925. It means those wills that are not made by the person specified under section 65 of the Act. Section 63 of the said Act only deals with the execution of an unprivileged will which talks about the rules to be followed while making an unprivileged will, such as the testator should sign the will and it should be done in someone’s presence, there shall be two or more witnesses during the procedure.
2.1.2 Privileged will
Section 65 of the act says that “Any soldier being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea, May, 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.”
Privileged wills may be in writing or in oral form. However, the execution of the will shall be governed by the rules such as the testator himself writes the will, signs it and should be made in the presence of two witnesses.
In the case of Sunita Shivdasani vs. Geeta Gidwani And Anr., it was held that although privileged wills are oral but requirements of Section 66 of the Act must be complied with including the presence of two witnesses at the time when the oral will is made. A will made by word of mouth is null at the expiry of one month.
2.2 Person capable of making a Will
It is important that a property which a person has acquired must be handled by someone after his death so as that all the efforts which were made to earn that property were made shall not go in vain rather be utilized by the heirs or some other person for his benefit. For this a person needs to fulfill the requirements as specified under Section 59 of the act which talks about the provisions related to the person who can make a will.
The section specifies the people who can make the will, such as:
- A person of sound mind.
- A person who has attain the age of majority i.e. 18 years.
- A married woman can dispose any type of property which she alienated during her lifetime.
- A deaf or blind person can make a will if they know what they are writing in the will.
- A person who is ordinary insane can make a will in the time frame in which he is of unsound mind.
- No person can make a will if he is in a state of intoxication or illness, or any other state of unconsciousness.
It is to be noted that the person who is making the will shall have the intention to draft the will and shall also have the capability for the same. In the case of Sanjeev Juneja vs. State & Ors.,the court held that the expression “Will” is defined by Section 2(h) of Indian Succession Act, 1925 which means the legal declaration of “the intention” by the testator, with respect to his property, which he desires to be carried out after his death. Also Section 59 of Indian Succession Act, 1925 governs the capability of person to make a Will.
Section 71 of the act talks about the alterations that are done in the will. It says that no alteration shall be made in the will to be done after the execution of the will and if so done, it shall have no effect. But if the alterations done are having the signature of the testator and the attesting witnesses, then the same can be executed. Alterations are not done in the original will rather on a separate document known as codicil and the same is attached with the original will.
In the case of Dayanandi vs. Rukma D Suvarna & Ors., the court observed that no signature of the testator were made in the margin or at other part of will or near the alterations made, so the court stated that if such alterations have not been made in the manner prescribed under Section 71, such alterations shall have no effect.
The execution of a will shall only take place after the death of the testator and not before that. The will is made by the testator but the same is executed by another person called executor, a legal representative of the testator. The executor should check that the testator has signed and affixed the will in the presence of two or more witnesses. The will shall be executed if no other party is dissatisfied with the things mentioned in the will and to whom it is being transferred.
In the case of Cherichi vs. Ittaianam, the court stated that the execution of a will has to be proved by the propounder of the will and also by the examination of one of the attesting witnesses. It is also necessary that the propounder of the will shall explain the suspicious circumstances surrounding the execution of will.
According to section 62, a will is liable to be revoked at anytime by the testator. Except him no other person can revoke the will during his lifetime. However, after his death the execution of a will can be stopped if a probate has been filed against the authenticity of the will.
Another section that deals with the revocation is section 69 which states that if a testator had made a will before his marriage then after the testator’s marriage the same will will not be enforce anymore. The testator has to make the will again after the marriage.
Also, Section 70 of the act states that the revocation of the will or codicil should be done in writing and the testator shall express his intention to revoke the will then it will thus revoke all the previous will and codicils.
In the case of Ramani U. Krishnan vs. Dr. Ammini Praveen Joshua, the court stated that it is a well established principle that a person who has an interest in the property of the testator can only file an application for the revocation of probate.
A will is an instrument by which a person disposes off his earned or acquired property in the favor of the person whom he has trust that such person will take good care of the property. Making of a will is extremely useful so as to avoid the conflicts that might take place in dealing with the property after the death of the person. Especially at this time of COVID-19 where a large number of people are dying, one should prepare a will of his own so that if something happens to the person, his property is not left unattended or in dispute.
 Indian Succession Act, 1925, s. 2(h)
 India succession act, 1935, s. 2(c)
 Indian succession act, 1925, s. 2(b)
 Indian succession act, 1925, s.2(f)
 AIR 2007 Delhi 242
 Indian Succession Act, 1925, s.63(1):Privileged wills may be in writing, or may be made by word of mouth
 Civil appeal no. 7548 of 2002
 6 December, 2000, AIR 2001 Ker 184
 Original Side Appeal No.321 of 2000, 22 March 2005