WILL

 

The law relating to wills is contained in part VI of the Indian Succession Act, 1925. But this is not applicable to wills made by Mohammedans. They are governed by the Mohammedans Law under which wills maybe made orally or in writing and formalities of signatures, attesting witnesses etc. are not required to be followed. There is however, nothing to prevent a Mohammedans from execution a written will duly singed and attested as required by the a Act.

All the provisions of part VI do not apply to Hindus, Buddhists, Sikhs and Jains. The provisions of this part which apply to Hindus, Buddhists, Sikhs and Jains are enumerated in schedule III to the Act. But by virtue of Sec. 30 of the Hindu Succession Act, 1956, a Hindu, Buddhist, Sikh or Jain may execute a will in accordance with the provisions of the Indian Succession Act.

"Will" is defined in Sec. 2 (h) of the Act to mean the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. The fundamental idea of a will is that the testator should thereby dispose of his property or such part of it as his personal law permits him to bequeath by will, in such a manner as seems to him best.

 

The two essential characteristics of a will are that:

(1) It must be intended to come into effect after the death of the testator, and

(2) It must be revocable by the testator at any time.

Though usually wills are made for disposing property they can also be made for appointing executors, for creating trusts and for appointing testamentary guardians of minor children.

 

"Codicil" is defined in section 2(b) of he Act to mean an instrument made in relation to a will, and explaining, altering or cadding to its dispositions, and shall be deemed to from part of the will when the alteration and additions are minor a codicil is the proper thing but if substantial changes are to be made in the will it is desirable to execute a fresh will and to revoke the earlier one. If there is inconsistency between the will and the codicil the codicil will prevail. A codicil requires the same formalities as a will. A will or any part of a will, the making of which has been caused by fraud or coercion which takes aw3.Y the free agency of the testator, is void.(Sec. 61)

 

Privileged and unprivileged wills:

A privileged will is one which is made by a solider employed in an expedition or in actual warfare, or an 115 airman so employed or engaged or a mariner at sea. He must have completed 'the age if eighteen years. A will executed by persons other than these is known as an unprivileged will. A privileged will can be oral or in writing.

The formalities prescribed for unprivileged wills like signature and attestation do not apply to privileged wills. They are governed by rules set out in Sec. 65 (2) of he Indian Succession Act. The provision s relating to privileged wills in the Act. apply to Mohammedans, Hindus, Buddhists, Sikhs and Jains also. The following requirements have to be complied with in executing an unprivileged will.

(a) The testator shall sign or affix his mark to the will, or it shall be signed by some other person on his presence and by his direction.

(b) 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.

(c) 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 of and by the direction of the testator, or has received form the testator a personal acknowledgment of his signature or mark, or the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than are witness should be present at the same time, and no particular form of attestation shall be necessary.

These formalities are not applicable to wills made by Mohammedans. If the will consists of more than one page; each page should be signed or marked by the testator and signed by the attesting witnesses. No particular form of will is prescribed by law. 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 he intention of the testator can be known there from (Sec. 74) a will or bequest not expressive of any definite intention is void for uncertainty (Sec. 89).

 

Capacity:-

The testator must be of sound and disposing mind at the time of the execution of his will sec 59 says that every person of sound mind not being a minor may dispose of his property by will. A married woman may dispose by will any property which she could alienate by her own act during her life. 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 an interval, in which he is of sound mind, No person can make a will while he is in such a state of mind, whether arising form intoxication or from illness or from any other cause that he does not know what he is doing.

 

Property, that can be bequeathed

All property, movable and immovable, of which the testator is owner and which is transferable can be disposed of by a will. Property which is legally non-transferable cannot be bequeathed. If a person has only a life interest in a property, he cannot make a will in respect of it. Sec. 30 of the Hindu Succession Act, 1956, provides: 116 Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.

 

Signature and attestation: -

The testimonium Clause (signature) and the attestation clause (witnesses) are the most important parts of a will. If these are not made strictly in accordance with the requirements of law it will not be a valid will. The testator and all the attesting witnesses must sign on every page of the will. The attesting witnesses need not know the contents of the will. They ate only witnesses to the signature or mark of the testator. The scribe of a will can be a competent attesting witness if he signs as an attesting witness. "Executor" is defined in Sec. 2 C. of the Indian Succession J\ct to mean a person to whim the execution the last will of a deceased person, is by the testator's appointment, confide. An executor is charged with the duty and conferred with the power to carry out the directions contained in the will. He has to collect and realise the estate of the deceased pay his debts and distribute the legacies.

 

Stamp Duty: registration

No stamp Duty is chargeable on a will, and registration is opt10nal. A will can be registered by the testator in his lifetime or by the executor or legatee after testator's death. Sec. 42 to 46 of the Registration Act, 1908 made provisions for the deposit of wills. Revocation of wills.

 

Revocation of wills

Sec. 62 of the Indian Succession Act provides that 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. Sec. 69 enacts that every will shall be revoked by the marriage of the testator. Sec. 69 does not apply to wills made by Hindus, Buddhists, Sikhs and Janis or by Mohammedans. The mode of revocation of unprivileged wills or codicils is laid down in Sec. 70 and that of privileged will in Sec. 72.

 

Probate and letters of administration

Sec. 213 of the Indian Succession Act enacts that no right as executor or enacts that n right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.

This Sec. applies only to wills made: -

(i) By Christians and Jews;

(ii) By Hindu, Buddhists. Sikhs and Janis Within the territories of West Bengal or the presidency Towns of Madras and Mumbai or in respect of immovable properties situate in these territories, and

(iii) By parsi within the local limits of the ordinary civil jurisdiction of the High Courts at Calcutta, Madras 117 and Mumbai or in respect of immovable properties situate within those limits.

It does not apply to wills made by Hindus, Buddhists, Sikhs and Jaonis out side the territories maintained in (ii) above in respect of immovable properties situate outside these territories. Nor does it apply to wills made by Parsis outside the limits mentions in (iii) above in respect of properties situate outside those limits. "Probate" is defined in Sec. 2 (f) to mean the copy of a will certified under the seal of a court of competent jurisdiction with a grant of the administration to the estate of the testator. Probate of a will when granted established the will from the death of the testator, and renders valid all intermediate acts of the executor as such.

It establishes conclusively the legal character of the person to whom the grant is made. It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator Probate can be granted only to the executor appointed by the will. It cannot be granted to a person who is a minor or is of unsound mind, nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules made by the Sate Government in this behalf. Other provisions relating to probate will be found in Sec. 224 to 227 and 276.