WILL : Meaning and requirements

WILL : Meaning and requirements

Succession is of two types, testamentary and intestate. If a person executes a valid will as to whom the property should go on his death and his property is passed on accordingly, it is referred to as testamentary succession. If there is no valid will and the property of a deceased person devolves as per the respective religious laws it is called intestate succession.

The Indian Succession Act came into operation on 30th September 1925 and it seeks to consolidate all Indian Laws relating to succession. The Act consists of 11 parts, 391 sections and 7 schedules. This Act is applicable to intestate and testamentary succession.

What is a Will?

Will means a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It can be revoked or altered by the maker of it at any time he is competent to dispose of his property.

A will made by a Hindu, Buddhist, Sikh, Jain, Christian, Parsi and Jew is governed by the provisions of the Indian Succession Act, 1925. However Muslims are not governed by the Indian Succession Act, 1925 and they can dispose their property according to Muslim Law.

Characteristics of a Will

A will must be intended to come into effect after the death of the testator; and It must be revocable by the testator at any time.

Competency to make will

·       Every person who is of sound mind and is not a minor can make a will.

·       Any married woman can make a will of any property which she could alienate during her life time.

·       Persons who are deaf or dumb or blind can make a will provided they are able to know what they do by it.

·       A person who is ordinarily insane may make a will during an interval in which he is of sound mind.

·       No person can make a wil 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.

Execution of Will

·       The testator (person making the will) should sign or fix his mark to the will or it should 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 should appear clearly and should be legible. It should appear in the manner that is appropriate and makes the will legal.

·       At the time of execution, at least two witnesses should be present.

·       IF not, the testator should declare and recognise the said writing as his will before the two attesting witnesses.

Kinds of Wills

      i.          Conditional Will: This is a Will made so as to take effect only on a contingency. The operation of the document may be postponed till after the death of the testator’s wife, for example.

     ii.    Joint Will: Two or more persons may make a joint Will. It will take effect as if each has properly executed a Will as regards his own property. If a Will is joint and is intended to take effect after the death of both, it will not be admitted to probate during the lifetime of either.

   iii.          Mutual Will: A Will is mutual when two testators confer on each other reciprocal benefits as by either of them constituting the other his legatee, the is to say, when the executants fill the roles of both the testator and legatee towards each other. Mutual Wills are also called Reciprocal Wills.

   iv.          Holograph Will: A holograph is a Will entirely in the handwriting of the testator. Naturally there is a greater guarantee of genuineness attached to such a Will. But in order to be valid it must also satisfy all the statutory requirements.

     v.          Concurrent Wills: The general rule is that a man can leave only one will at the time of his death. But for sake of convenience a testator may dispose off some properties. e.g., those in one country by one Will and those in another country by another Will. They may be treated as wholly independent of each other, unless there is any inter-connection or the incorporation of one in the other. Such Wills are called concurrent wills.

   vi.          Duplicate Will: A testator, for the sake of safety, may make a will in duplicate, one to be kept by him and the other deposited in some safe custody with a bank, executor or trustee. Each copy must be duly signed and attested in order to be valid. A Valid revocation of the original would affect a valid revocation of the duplicate also.

 vii.          Onerous Will: This is a Will, which imposes an obligation on the legatee that he gets nothing until he accepts it completely.

Registration of Will

A will need not be registered compulsorily but if so desired it may be registered by the testator during his lifetime.  A Will may be deposited with the registering authority under Sec.42 of the Indian Registration Act, 1908. A Will or Codicil is not required to be stamped at all.

Wording of a Will

Sec.74 of the Indian Succession Act, 1925 lays down that the use of technical words or terms of art is not necessary in a will but the wording should be such as to clearly indicate the intention of the testator.

A will must be construed as a whole to give effect to the manifest intention of the testator; Nathu v. Debi Singh, AIR 1966 Punj 226.

Codicil

Codicil is an instrument made in relation to a Will and explaining, altering or adding to its disposition.  It shall be deemed to form part of a Will. (Sec.2 (b) of the Indian Succession Act, 1925)

If the Testator wants to change the names of the Executors by adding some other names, in that case this could be done by making a Codicil in addition to the Will, as there may not be other changes required to be made in the main text of the Will.

If the Testator wants to change certain bequests by adding to the names of the legatees or subtracting some of them in case some Beneficiaries are dead and the names are required to be removed, all these can be done by making a Codicil.

The Codicil must be in writing. It must be signed by the Testator and attested by two Witnesses.

Revocation of Will

A Will may be revoked at any time before the death of the testator but a will executed by two persons jointly cannot be revoked after the death of any one of them, if the survivor has given effect to the directions of the deceased testator.

In case of two Wills, the latter one will prevail; Badari Basamma v. Kandrikeri, AIR 1984 NOC 237 (Kant).

In case of revocation, the testator should give it in writing that he has made certain changes or has revoked the will. It must be signed by the testator and attested by two or more witnesses.  There should be a clause stating that the present will is the last will of the testator and any will made prior to this would stand revoked.  The testator cannot revoke the will by just striking it off or scratching it. He must sign it and have it attested by at least two witnesses.

Probate of 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 heirs, a 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. It is only after this that the will comes into effect.

Though executors derive their title from the Will and not the probate, the probate is still the only proper evidence of the executor's appointment. The grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off, but only perfects the representatives title of the executor to the property, which did belong to the testator and over which he had a disposing power.