Meaning:
A Will is a solemn
document by which a dead man entrusts to the living to the carrying out of his
wishes. Section 2(h) of Indian Succession Act, 1925 provides that Will means the
legal declaration of the intention of a person with respect to his property,
which he desires to take effect after his death Will has been defined in Corpus
Juris Secundum as A ‘Will’ is the legal declaration of a man’s intention, which
he wills to be performed after his death, or an instrument by which a person
makes a disposition of his property to take effect after his death.
Essential Features of a
Will
A Will can be made at any
time in the life of a person. A Will can be changed a number of times and there
are no legal restrictions as to the number of times it can be changed. It can
be withdrawn at anytime during the lifetime of the person making the Will. A
Will has to be attested by two or more witnesses, each of who should have seen
the testator signing the Will.
The essential features are:
1. Legal
declaration: The documents purporting to be a Will or a testament must be
legal, i.e. in conformity with the law and must be executed by a person legally
competent to make it. Further the declaration of intention must be with respect
to the testator’s property It is a legal document, which has a binding force
upon the family.
2. Disposition of property: In a Will, the testator bequeaths or leaves his
property to the person or people he chooses to leave his assets/belongings. A
Hindu person by way of his Will can bequeath all his property. However, a
member of an undivided family cannot bequeath his coparcenery interest in the
family property
3. Takes effect after death: The Will is enforceable only after the
death of the testator
Under section 18 of the
Registration Act the registration of a Will is not compulsory. Also, the SC in
Narain Singh v. Kamla Devi has held that mere non-registration of the Will an
inference cannot be drawn against the genuines of the Will. However it is
advisable to register it as it provides strong legal evidence about the
validity of the Will. Once a Will is registered, it is placed in the safe
custody of the Registrar and therefore cannot be tampered with, destroyed,
mutilated or stolen. It is to be released only to the testator himself or,
after his death, to an authorized person who produces the Death Certificate
Since a testamentary
disposition always speaks from the grave of the testator, the required standard
of proof is very high. The initial burden of proof is always on the person who
propounds the Will.
Kinds of Wills
Ø Conditional
Wills: A Will maybe made to take effect on happening of a condition. In
Rajeshwar v. Sukhdeo the operation of the Will was postponed till after the
death of the testator’s wife. However if it is ambiguous whether the testator
intended to make a Will conditional, the language of the documents as well as
the circumstances are to be taken into consideration.
Ø Joint
Wills: Two or more persons can make a joint Will. If the joint Will is joint
and is intended to take effect after the death of both, it will not be admitted
to probate during the life time of either and are revocable at any time by
either during the joint lives or after the death of the survivor.
Ø Mutual
Wills: Two or more persons may agree to make mutual Wills i.e. to confer on
each other reciprocal benefits. In mutual Wills the testators confer benefit on
each other but if the legatees and testators are distinct, it is not a mutual
Will. Mutual Wills are also known as reciprocal Wills and its revocation is
possible during the lifetime of either testator. But if a testator has obtained
benefit then the claim against his property will lie. Where joint Will is a
single document containing the Wills of two persons, mutual Wills are separate
Wills of two persons.
Ø Privileged
Wills: Privileged Wills are a special category of Wills and other general Wills
are known as unprivileged Wills. S.65 of ISA provides that a Will made by a
soldier or a airman or a mariner, when he is in actual service and is engaged
in actual warfare, would be a privileged Will. S.66 provides for the mode of
making and rules for executing privileged Wills. Ss. 65 and 66 are special
provisions applicable to privileged Wills whereas other sections relating to
Wills are general provisions which will be supplementary to Sections 65 and 66
in case of privileged Wills.
Who Can Make A Will
S.59 of Indian Succession Act provides that every person who is of sound mind
and is not a minor can make a Will.
Execution
of a Will
On the death of the testator, an executor of the
Will (executor is the legal representative for all purposes of a deceased
person and all the property of a testator vests in him. Whereas a trustee
becomes a legal owner of the trust and his office and the property are blended
together) 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 grants 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. It is only after this that
the Will comes into effect.
Signature
of The Testator
S.63(a) of ISA provides
that the testator shall sign or affix his mark. If the testator is unable to
write his signature then he may execute the Will by a mark and by doing so his
hand maybe guided by another person. In another words a thumb impression has
been held as valid.
Attestation of Will:
Attesting means signing a document for the purpose of testifying the signature
of the executants. Therefore an attesting witness signing before the executants
has put his mark on the Will, cannot be said to be a valid attestation. It is
necessary that both the witnesses must sign in the presence of the testator but
it is not necessary that the testator have to sign in their presence. Further
it is not necessary that both the witnesses have to sign at the same time. It
is also not necessary that the attesting witnesses should know the contents of
the Will.
