In India execution of a Will – Demystifying the Law of Testamentary Succession

Shivek Sharma, Institute of Law, Nirma University, Ahmedabad

The Property has always remained a subject matter of concern amongst people.  The Courts are flooded with cases deciding over the rightful ownership of property. A property can be inherited in two ways namely:- Intestate Succession and Testamentary Succession . A person can decide on as to how his property shall devolve. This can be carried out through a testamentary document called as “Will”. Indian Succession Act, 1925 and the Personal law of Muslims are the governing laws for a Will.

Meaning of Will

Section 2(h) of the Indian Succession Act, 1925 defines Will as “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”

In simple words, A will is a document made by a person (called as “Testator”) whereby he bequeaths his property in favour of another person (called as “Legatee”). A will takes effect only after the death of the testator.

Features of a Will

Will is a simple declaration of the intention of the testator to give his/her property. A Will must be simple. A Will must reflect the intention of the testator to devolve his/her property. Courts in many cases have reiterated that while interpreting the contents of the Will, the court must place itself in the chair of the testator who executed the Will [1].Following are the essential features of a Will [2].

A Will must reflect the intention of the Testator to execute the Will;

The name of the Legatee and Testator should be clearly mentioned in the Will;

It must be signed and attested;

A Will shall only come into force after the death of the Testator;

Testator  can make any modification and alteration to the Will by executing a codicil;

Testator during his lifetime can write n number of Wills;

With the execution of subsequent Will, the previous Will stands nullified;

Registration of Will is not mandatory under the Indian Registration Act 1908. Further, it is always advisable to register a Will. However, the Genuineness of the Will cannot be questioned on the grounds of “non-registration” [3].

Who can write a Will?

Section 59 of the Indian Succession Act, 1925 lays down the eligibility criteria for a person who is capable of making a Will. In brief section 59 suggests that, every individual who is major, and is of sound mind may dispose of his property by way of Will. The Indian Majority Act, 1875 defines 18 years as the age of majority. However, under the Muslims personal law, the age of majority is considered as 15 years.

What are the kinds of Wills?

There are primarily four kinds of Wills namely, Contingent or Conditional Will, Joint Will, Privileged Will, and Unprivileged Will.

Contingent Will: -A Will is said to be contingent, when the Testator while making his Will enumerates certain conditions. The Will shall become operative only when the conditions(s) are met;

 

Joint Will :- It is another kind of a testamentary instrument where by the testamentary disposition is given effect by two or more persons. The Will shall take effect only after the death of Testators and shall not be enforceable during the lifetime of either;

Privileged Will:- As the word suggests, the privileged Will is a special testamentary instrument executed by a soldier or an airman or a mariner, when he is engaged in actual warfare. Section 65 of the Indian Succession Act, 1925 provides for Privileged Will while Section 66 lays down the procedure for executing Privileged Will.

Revocation of the Will

The maker of a Will at any time during his lifetime can revoke his Will. Section 62 of the Indian Succession Act, 1925 provides for revocation of a Will. Section 70 of the Indian Succession Act, 1925 provides the manner in which it can be revoked.

Section 70 divides the manner of revocation into two parts:-

By operation of law (i.e. marriage) as given under section 63; and

By the act of parties (i.e. by executing another Will) or by acts such as burning, tearing or otherwise destroying.[4]

A mere intention to revoke a Will does not amount to revocation. In order to revoke a Will, one of the requirements of section 70 must be complied with.[5]

The effect of revocation by executing a subsequent Will makes the prior Will as inoperative. However, the onus to prove that the Will was revoked by the testator lies on the person alleging revocation. [6]

Probate

Section 2(f) of the Indian Succession Act, 1925 defines probate as the copy of the Will duly certified under the seal of the court of competent jurisdiction with a grant of administration to the estate of the Testator.  However, the grant of probate to the executor of a Will does not confer upon him the title over the property.

Probate is mandatory in a case where the Testator is a Hindu, Jain, Sikh, Buddhist, or Parsi and the Will is executed in certain specified territories. Whereas, it is not mandatory in case the Testator is Muslim or Christian.

Section 222 of the Indian Succession Act, 1925 provides that the probate shall be only granted to the executor of the Will.

Section 223 states that Probate cannot be granted to any person who is minor or is of unsound mind. Association of individuals is also disqualified under this section. However, probate can be granted to a company.

When there are more than one executors, probate must be granted to all who apply as per Section 224.

Procedure to obtain probate

The applicant must file an application for probate along with the original Will. It must be filed before the district judge (or High Court based on the valuation of property or where the High Court is exercising the original jurisdiction for matters related to testamentary succession).

As per Section 276, the application for probate must contain:-

Time of the Testator’s death;

Will shall be annexed along with the declaration that it was the last Will;

The Will was duly executed;

Statement regarding the valuation of assets likely to be inherited;

Documents pertaining to movable and immovable property in the Will, if any; and

The applicant must be the executor named in the Will.