A person can ensure as to how his property should devolve and to whom it shall devolve, after his death, through a Will. If a person dies without leaving behind his Will, his property would devolve by the way of law of intestate succession and not testamentary succession (i.e. in accordance to the Will) Hence, it is preferable that one should make a Will to ensure that one’s actual intention is followed and the property is devolved accordingly. Will is an important testamentary instrument through which a testator can give away his property in accordance to his wishes. The importance and impact of a will can be seen through the controversy that arose with regards to the will of Priyamwada Birla, widow of M. P. Birla, decided the fate of the Birla group of Industries.
The origin and growth of Will amongst the Hindus is unknown. However, Wills was well known to the Mohammedans and contact with them during the Mohammedan rule, and later on with the European countries, was probably responsible for the practice of substituting informal written or oral testamentary instruments with formal testamentary instruments. The Indian Succession Act, 1925, consolidating the laws of intestate (with certain exceptions) and testamentary succession supersedes the earlier Acts, and is applicable to all the
Wills and codicils of Hindus, Buddhists, Sikhs and Jains, does not govern Mohammedans and they can dispose their property according to Muslim Law.
Will as defined by S.2 (h) of the Indian Succession Act, 1925 as 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 Characters of Will
There are four essential characters of a will:
- The document proposed to be a will must be legal i.e., in conformity with the provisions as regards execution and attestation, as laid down in S. 63 of the Act, and must be made by a person competent to make it. A minor is legally incompetent to make a will, and a will by a minor is not a legal declaration. It may also be noted that use of the word will not make it a will, if it does not amount to a testamentary declaration disposing of the property.
- The declaration should relate to the property of the testator which he wants to dispose of. If the declaration contains no reference to the disposal of the property, but only appoints a manager to manage the property, or gives an authority to his widow to adopt, it is not a will.
- The declaration as regards the disposal of the property of the testator must be intended to take effect after his death. If the declaration is not to that effect, or if the declaration seeks to effectuate the intention of the writer immediately, i.e., during his lifetime, then it is not a will.
- The essence of every will is that it is revocable during the lifetime of the testator. A will always operates from the date of the testator’s death, and not from the date of its execution. During the testator’s life, he can revoke the will at any time.
Types of Will
A Will may be made to take effect on the 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.
- 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.
- 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.
- 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 an 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.
S.62 of the Indian Succession Act deals with the characteristic of a Will being revocable or altered anytime during the lifetime of the testator. S. 70 of ISA provides the manner in which it can be revoked. A mere intention to revoke is not an effective revocation. The revocation of the Will should be in writing and an express revocation clause would revoke all the prior Wills and codicils. If there is no express clause to the effect then the former Will would become invalid to the extent of its inconsistency with the latest Will, this is known as an implied revocation (however it should be shown that the differences are irreconcilable). However, if there is no inconsistency between the Wills then they cannot be considered as two separate Wills but the two must be read together to indicate the testamentary intention of the testator.
Revocation can also be made in writing through declaring an intention to revoke and the writing must be signed by the testator and attested by two witnesses. The deed of revocation has to be executed in the same way as the Will itself.
S.71 of ISA is applicable to alterations if they are made after the execution of the Will but not before it. The said section provides that any obliteration, interlineations or any other alteration in a Will made after its execution is inoperative unless the alteration is accompanied by the signatures of the testator and the attesting witnesses or it is accompanied by a memorandum signed by the testator and by the attesting witnesses at the end of the Will or some other part referring to the alterations. the alterations if executed as required by the section would be read as a part of the Will itself. However, if these requirements are not fulfilled then the alterations would be considered to be invalid and the probate will be issued omitting the alterations. The signatures of the testator and the attesting witnesses must be with regards to the alteration and must be in proximity of the alteration. Further they should be in the Will itself and not in a separate distinct paper. But if the obliteration is such that the words cannot be deciphered then the Will would be considered as destroyed to that extent.
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 may be guided by another person. In other words a thumb impression has been held as valid.
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