What is a Will and why it is advisable to have a Will?
A Will is a legal document which states the intentional and unequivocal intent of disposition of property post demise. It not only holds weight in a court, it permits the maker or testator to voluntarily determine the individual stake of his legal heirs, spouse, parents, and extended family or beneficiaries in his inheritance. It is a written document and the same can be subject to amendment or revocation anytime during the life of the testator[1].
Further, the law of succession divides succession of property into below two categories:
- Intestate succession – wherein the person died without drafting a Will and their property is divided amongst the legal heirs in accordance with personal laws; and
- Testamentary succession – wherein property is divided in accordance with the Will.
In order to circumvent legal disputes and have a planned execution of disposition of property, it is always advisable to have a Will.
Law relating to Wills in India
The law of testamentary succession is determined in accordance with the Indian Succession Act, 1925 (hereinafter ‘the Act’). However, the scope of applicability of the Act limits to Hindus, Buddhist, Sikh and Jains and does not include Muslims[2].
Other ancillary legislations governing the testamentary succession are:
- The Code of Civil Procedure, 1908
- The Indian Registration Act, 1908
Who is eligible to draft a Will? Whether a person with disability can make a valid Will? If yes, then what are the conditions?
A. Eligibility
Any person may draft a Will, provided the following criteria are satisfied[3] –
- Legal age, i.e. not a minor; and
- Soundness of mind
However, the law creates an exception for a person suffering from a disability such as deaf, dumb, blind or insane, provided they are consciously aware of their actions while drafting the same. If a document is drafted the contents of which are lost on the maker, the same cannot amount to a valid Will[4].
B. Types of Wills
A Will, generally, can be classified into the following two types –
- Privileged Will – Where the testator is any soldier or airman employed in an expedition or engaged in warfare or any mariner at sea, of legal age[5].
- Unprivileged Will – Where the will is drafted by a testator who is not one of the aforementioned.
What are the legal requirements for making and executing a valid Will?
As per Section 2(h) of the Act, a Will is 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.[6]
A. The process of making a Will
A perusal of the Act highlights the following essential requisites to make a valid Will –
- Intention of the testator;
- Legal declaration;
- Such a declaration pertains to the testator’s property and its disposal after his death only;
- Subject to amendment or revocation during the life of the testator;
- Not obtained by way of coercion, fraud or importunity; and
- Duly executed
A Will does not require any technical or legal jargon in order to be valid. It is sufficient for its execution that the words used, expressly and unequivocally state the intent of the testator regarding disposition of his property. Any minor discrepancies or omission need not make it invalid, if the intention of the testator can be easily deduced. As stated above, a Will may be altered or amended at any time using a Codicil[7], and the same forms a part of the Will.
While drafting a Will, the testator must ensure details pertaining to the properties in question of disposition, their beneficiaries, their respective shares and so forth, are described properly and unambiguously. This saves the Court from the hassle of interpreting a testator’s intent.
B. The process of Execution of a Will
In order to ensure proper execution of a Will, the testator must appoint an executor. The executor is legally bound to execute the Will as per the instructions of the testator. However, no execution of the Will takes place without a Probate, which is certified copy of a Will, duly obtained from a Court’s order[8].
- Execution of an unprivileged Will
An unprivileged will must be written and duly signed and attested by[9] –
- Testator himself, or another person upon the testator’s instructions and in his presence; and
- At least two other witnesses. The Law enumerates that a witness ought not to be disqualified on account of having an interest in or being the executor of the Will.
(Note – It is crucial that the position of the signature or affixation signify the intent of execution of the Will)
2. Execution of a privileged Will
In case of a privileged Will, the Will may be in writing or spoken through words and may be stated on any document or instrument purporting to be a Will[10].
| Manner of drafting Will | Requirements |
| Hand-written wholly by the testator | No need for signature or attestation |
| Written wholly or in part by another person | Signature of testator required |
| An instrument claiming to be a Will, written wholly or in part by another person and not signed by testator | Sufficiently shown it was written on the testator’s directions |
| Hand-written instructions for preparing a Will by the testator, but the testator dies before it is formally drafted | Instructions to be treated as Will |
| Verbal instructions in presence of two witnesses by the testator and subsequently written, but the testator dies before it is formally drafted in his presence | Instructions to be treated as Will |
| Intention declared by word of mouth in the presence of two witnesses | Such words to be treated as Will. |
Is it compulsory to register a Will?
As per Section 18 of the Indian Registration Act, 1908, registration of a Will although not compulsory, ensures its safety from any possible tampering or destruction. It may be registered by the testator himself or after his death, by executor before the Registrar or Sub-Registrar[11]. Once deposited, the testator also has the flexibility to withdraw the same and make any alterations as needed.
Can a Will be revoked or altered once made?
As per Section 62 of the Indian Succession Act, a Will may be revoked or altered at any point in time by the testator. Although the testator must be competent to dispose-off the property as he was at the time of making the Will.
Some instances where a Will stands revoked –
- Where the testator gets married, the Will made before such marriage stands executed;
- A declaration of intention given in writing by the testator which subsequently revokes all the previous Wills;
- A subsequent Will executed, leaving the previous Will revoked;
- An unprivileged Will revoked by subsequently drafting a privileged Will;
- A privileged Will revoked by the testator by drafting an unprivileged Will;
- By burning, tearing or destroying the original Will
(Note – An unprivileged Will or codicil once revoked will not be revived, unless the testator re-executes the same with an intention.[12])
In what circumstances can a Will be challenged before a Court of law?
Despite satisfying the aforementioned criteria, the validity of a Will can still be challenged on grounds that it was obtained by way of coercion, fraud or importunity[13]. If the testator was not able to exercise free will while drafting the same, the same cannot be valid as it lacks the requisite intent. Further, a grant of Probate may also be cancelled in case of the following circumstances[14] –
- Proceedings to obtain the grant of Probate were defective;
- The grant was fraudulently obtained from the Court by way of a false suggestion or concealment of material fact;
- By way of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently;
- The grant became useless and inoperative through certain circumstances.
The aforementioned questions can be viewed as a brief insight to the law of testamentary succession in India and the mandatory requisites for drafting a valid Will. It is pertinent to keep in mind that procedure to create a Will may become challenging at times and to ensure its proper execution as per the law, it is advisable to seek legal expertise and guidance.
[1] Section 62 – Indian Succession Act, 1925 (PDF) accessed on June 02, 2020
[2] Supra Note 2 – Sections 57 and 58
[3] Section 59 – Indian Succession Act, 1925 (PDF) accessed on June 02, 2020
[4]Ibid
[5]Ibid Section 66 of the Indian Succession Act, 1925
[6]Section 2(h) of the Indian Succession Act, 1925
[7] Section 2(b) Codicil – A document ancillary to the Will for the purpose of explaining, altering or amending the Will; accessed on June 02, 2020
[8] Section 2(f) of the Indian Succession Act, 1925
[9]Section 63 of of the Indian Succession Act, 1925
[10]Section 66 of the Indian Succession Act, 1925 accessed on June 02, 2020
[11]Section 40 of Indian Registration Act, 1908; https://indiacode.nic.in/bitstream/123456789/12230/1/the_registration_act%2C_1908.pdf; accessed on May 28, 2020
[12]Section 73 of the Indian Succession Act, 1925 accessed on June 02, 2020