Law of Testamentary Succession in India

CASIRJ Volume 5 Issue 7 [Year - 2014] ISSN 2319 – 9202

International Research Journal of Commerce Arts and Science http://www.casirj.com Page 91

Law of Testamentary Succession in India

Mumtaj, llm, kurukshetra university,

kurukshetra

Sushila, llm, kurukshetra university,

kurukshetra

1. Introduction

Jeremy Bentham in his book “Theory of Legislation” wrote that the object of giving

power to the owner to dispose off his property by testamentary disposition is to cure the

imperfection or inability of law to satisfy individual demands which may be diverse. He

states that

“The law, not knowing individuals, cannot accommodate itself to the diversity of

their wants. All that can be exacted from it is to offer the best possible chance of

satisfying those wants. It is for each proprietor, who can and who ought to know the

particular circumstances in which those dependent upon him will be placed upon his

death, to correct the imperfection of law in all those cases which it cannot foresee. The

power to make a will is an instrument intrusted to the hand of the individual, to prevent

the private calamities”1.

Will2 is a translation of the Latin word 'voluntas', which was a term used in the text of

Roman Law to express the intention of a testator. It is of significance that the abstract

term has come to mean that document in which the intention is contained. The word

'testament' is derived from 'testatio menties', it testifies the determination of the mind. It

means, 'the legal declaration of a man's intentions, which will be performed after his

death'. A last Will and testament is defined to be 'the just sentence of our Will, touching

what we would have done after our death". Every testament is consummated by death,

and until he dies, the Will of a testator is ambulatory. A 'Will is an instrument by which a

person makes a disposition of his property to take effect after his decease, and which is in

its own nature ambulatory and revocable during his life". This ambulatory character of a

Will has been often pointed out as its prominent characteristic, distinguishing it, in fact,

1 Bentham, Jeremy, Theory of Legislation (1975) at p.112

2As quoted in Uma Devi Nambiar and Others v. T.C. Sidhan (Dead) 2004 (2) SCC 321



from ordinary disposition by a living person's deed, which might, indeed postpone the

beneficial possession or even a vesting until the death of the disposer and yet would

produce such postponement only by its express terms under an irrevocable instrument

and a statement that a Will is final does not import an agreement not to change it. A Will

is the aggregate of man's testamentary intentions so far as they are manifested in writing,

duly executed according to the Statute.

A will is a device or an instrument with the help of which an owner of the property makes

a disposition that is to take effect after his death and which by its very nature revocable.

The other reason for such power is that everybody likes to make sure that the life he has

led has been meaningful and is concerned about his property after his death. If a person

has power to dispose off his property during his lifetime, why he should not be give the

power to provide for the scheme of devolution of his property after his death. Rule of

natural justice also requires that he must also be given power that the property he earned

with hard labour is disposed by him in accordance with his wished not only during his

life, but after his death too. A person can ensure as to how his property should devolve

and to whom it shall devolve, after his death, through a Will. This will also help him to

have authority over those who depend on him and he can use his authority to inculcate

virtue and control vice in his dependent by fear that if his dictates are not followed then

such dependant will not be getting any share in his property. If a person dies without

leaving behind his Will, his property would devolve by way of law of intestate succession

and not testamentary succession i.e. in accordance to the Will. Will is an important

testamentary instrument through which a testator can give away his property in

accordance to his wishes.

It is still a moot point whether the British introduced wills to Hindus, or whether Hindus

adopted some form of will under the influence of Muslims. It is certain that with the

establishment of British rule in India, the English Law of wills was applied to Hindu

Wills, so far as practicable, under the doctrine of justice, equity and good conscience3.

Among the Muslims wills have been recognized from the beginning. It seems some forms

of wills did exist even in pre-Islamic Arabia4.

In India Wills were 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 development of law relating to wills among Hindus

was mainly during the British Period. When Indian Succession Act, 1865 was enacted it

was not applicable to Hindus. In 1870, the Hindu Wills Act was passed to provide for

rules for execution, attestation, revocation, revival, interpretation and probate. The Hindu

Wills Act was later was repealed and re-enacted in clause (a) and (b) of Section 57 of

Indian Succession Act, 1925. 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

3 Diwan, P, Law of Intestate and Testamentary Succession, at p.429, 3

rd Edition (2007reprint) Universal Law

Publishing Company, Delhi 4 Id at p.430



throughout India. The Indian Succession Act, 1925, does not govern Muslims and they

can dispose their property according to Muslim Law.

2. Will and other Important: Definitions and Concepts

To understand the rules and principles relating to testamentary disposition, certain terms

peculiar to these dispositions has to be understood. These terms are discussed as follows:

Wills: A will is a device or an instrument with the help of which an owner of the property

makes a disposition, which is to take effect after his death and which by its very nature

revocable. A will under the Indian Succession Act, 1925, which is the general law of

testamentary succession for Indians is defined as

“Will is the legal declaration of the intention of the testator with respect to his

property which he desired to be carried into effect after his death5”.

A will under Sec. 2 (h) of Indian Succession Act, 1925 does not involve any transfer,

nor effect any transfer inter-vivos, but is a legal expression of the wishes and intention of

a person in regard to his property which he desire to be carried into effect after his death.

A will regulate succession and provide for succession as declared by it6. A Will is a

solemn document by which a dead man entrusts to the living to the carrying out of his

wishes.

Codicil: Codicil is an instrument made in relation to a Will, explaining, altering or

adding to its dispositions and is deemed to be a part of the Will7. The purpose of codicil

is to make some small changes in the Will, which has already been executed. If the

testator wants to change the names of the executors by adding some other names, or

wants to change certain bequests by adding to the names of the legatees or subtracting

some of them, a Codicil in addition to the Will can be made to do so. The codicil must be

reduced to writing and has to be signed by the testator and attested by two witnesses. It is

also the duty of the court to arrive at the intention of the testator by reading the Will and

all the codicils. The codicil and will can be distinguished as the will representing the

primary testamentary document and codicil is one which varies or modifies the will.

Executor and Administrator: Executor means a person to whom the execution of the

last will of a deceased person is, by the testator’s appointment confided8. Where as

Administrator means a person appointed by competent authority to administer the estate

of a deceased person when there is no executor9. An executor is appointed by the testator,

as distinguished from an administrator who is appointed by the court. Where the Will

confers the powers to collect the outstanding, pay debts and manage the properties, the

person can be said to be appointed as an executor by implication.

5 Sec 2(h) of Indian Succession Act, 1925

6 N Ramaya v. Nagaraj, S AIR 2001 Karn 395

7 Sec 2(b) of of Indian Succession Act, 1925

8 Sec 2(c) of Indian Succession Act, 1925

9 Sec 2(a) of Indian Succession Act, 1925



Probate: Probate mean the copy of a will certified under the seal of the court of

competent jurisdiction with a grant of administration to the estate of the testator10

.

Probate is an evidence of the appointment of the executor and unless revoked, is

conclusive as to the power of the executor. The grant of probate to the executor however

does not confer upon him any title to the property.

Letter of Administration: Letter of Administration is a certificate granted by the

competent court to an administrator where there exists a Will authorizing him to

administer the estate of the deceased in accordance with the Will. If the Will does not

name any executor, an application can be filed in the court for grant of Letter of

Administration for the property.

Attestation: 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.

3. Essential Feature of a Valid 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. There are

certain essentials which must be satisfied by any document to be called a will. These

essentials are as follows:

1. Legal Declaration of Intention: 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. Not Confined to Property only: 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. The will can also be made to

revoke previous will and also for appointment of testamentary guardian for minor

children11

.

3. Revocable: A will is by its very nature revocable which the testator can either revoke

directly by making another will or by doing anything which has the effect of revoking the

will i.e. sell the property or make gift.

4. To take effect after the death of testator: The Will is enforceable only after the

death of the testator. Till the death of the testator the beneficiary or the executor has no

interest in the property.

10

Sec 2(f) of Indian Succession Act, 1925 11

Sec 60 of Indian Succession Act, 1925



5. Registration not Compulsory: Under section 18 of the Registration Act the

registration of a Will is not compulsory. Also, the SC in Narain Singh v. Kamala Devi12

has held that mere non-registration of the Will an inference cannot be drawn against the

genuiness 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.

4. Kinds of Will

Conditional wills: A will may be made with the intention that it shall become operative

only upon the happening of the specified event. Such will not have any effect if condition

is not fulfilled. In Rajeshwar v. Sukhdev, the operation of the Will was postponed till after

the death of the testator’s wife. The court held that 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 and Mutual Wills: Two or more persons can make a joint Will or mutual

will. When two or more persons make Will by a single instrument, it may be referred to

as joint Will. Thus a joint Will is a single instrument whereby two persons give effect to

their testamentary disposition. On the other hand, a mutual Will is one of two

testamentary papers made respectively by two persons, each giving the other similar

rights in his property and being in fact identical, so far as they can be, for the purpose of

carrying out of the intention of the two testators. In a joint Will there is no reciprocity

whereas mutual Wills are described as reciprocal Wills.

A joint will does not take effect as one will but as separate will of the parties who made

it. The joint Will which is not the mutual will can be revoked by either or both of the

parties at anytime without the consent of other13

.

Two or more persons may agree to make mutual Wills i.e. to confer on each other

reciprocal benefits14

. 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.

In the case of V. Sarada v. K.V. Narayana Menon15

, the court described the distinction

between joint Will and mutual Will in the following words:

"A joint will, though for all apparent purposes, is a simple testamentary instrument,

constitutes or unites in the testamentary disposition of two or more persons. The

document only evidences that two or more persons have executed their Wills in a single

document. Mutual Wills as distinguished from joint are described as reciprocal Wills.

12

AIR 1954 SC 280 13

Mellows, A.R, The Law of Succession (1970) Butterworths, London at p.16 14

Ibid 15

AIR 1989 Ker155



Reciprocity in the matter of bequests under the Wills is the sigil and signet of a mutual

Will. The testators should confer upon each other reciprocal benefits."

A Joint Will is a Will made by two or more testators contained in a single document, duly

executed by each testator, disposing either of their separate properties, or of their joint

property. It operates on the death of each testator as his Will disposing of his separate

property, and is in effect two or more Wills depending upon the number of testators.

In case of mutual Wills, the testators execute their separate Wills but reading of the two

Wills would show reciprocity in the matter of bequest i.e. testators confer, by their

respective wills, reciprocal benefits upon each other. It is reciprocal will where one

testator is the legatee of the other. A will is mutual when two testators confer upon each

other reciprocal benefits, as by either of them constituting the other his legatee; that is to

say, when the executants fill the roles of both testator and legatee towards each other. But

where the legatees are distinct from the testators, there can be no question of a mutual

Will16

.

Mutual Wills may be made, either by a joint Will or by separate Wills, in pursuance of an

agreement that they are not to be revoked. Such an agreement may appear from the Wills,

or may be proved outside the Wills, but it is not established by the mere fact that the

Wills are in identical terms. If no such agreement is shown, each party remains free to

revoke his will. If there are separate Wills, or to revoke the joint Will, so far as it disposes

of his property, and the fact that one party has died without revoking property, and the

fact that one party has died without revoking the disposition of his property does not

prevent the survivor from revoking the disposition which he has made notwithstanding

that he has received benefits out of the estate of the deceased party. Even when there is

such an agreement and one party has died after departing from it by revoking or altering

the Will, the survivor having notice of the breach cannot claim to have the later Will set

aside, since the notice gives him the chance of altering the Will as regards his own

property; and the death of the deceased party is itself sufficient notice for this purpose. If,

however, the deceased has stood by the agreement and not revoked or altered his Will,

the survivor is bound by it, and although probate will be granted of a later Will made by

him in breach of the agreement, since a Court of probate is only concerned with the last

Will, the personal representatives of the survivor nevertheless hold his estate in trust to

give effect to the provisions of the joint Will or mutual Wills17

."

Privileged and Unprivileged Wills: Privileged Wills are a special category of Wills and

other general Wills are known as unprivileged Wills. S.65 of Indian Succession Act, 1925

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

16

Kochu Govindan Kaimal and Ors. v. Thayankoot Thekkot Lakshmi Amma ,AIR1959SC71

17

Halsbury's Laws of England, fourth edn., vol. 50 at pages 95 and 96 as quoted in Meera Dewan v.Shakuntala Dewan, AIR

2002 Delhi 321



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. Section 63 of the Indian Succession Act, 1925 reads as follows:

"63. Execution of unprivileged Wills- Every testator, not being a soldier employed in an

expedition or engaged in actual warfare, or an airman so employed or engaged, or a

mariner at sea, shall execute his Will according to the following rules-

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some

other person in 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 and by the direction of the testator, or has received from the testator a

personal acknowledgement of his signature or mark, or of the signature of such other

person and each of the witnesses shall sign the Will in the presence of the testator, but it

shall not be necessary that more than one witness be present at the same time, and no

particular form of attestation shall be necessary."

Whereas Sec. 66 provides the Mode of making, and rules for executing, privileged wills.

It provides special rules of execution of the privilege wills. It states that Privileged wills

may be in 1writing, or may be made by word of mouth. The execution of privileged wills

shall be governed by the following rules:

(a) The will may be written wholly by the testator, with his own hand. In such case it

need not be signed or attested.

(b) It may be written wholly or in part by another person, and signed by the testator. In

such case it need not be attested.

(c) If the instrument purporting to be a will is written wholly or in part by another person

and is not signed by the testator, it shall be deemed to be his will, if it is shown that it was

written by the testator's directions or that he recognised it as his will.

(d) If it appears on the face of the instrument that the execution of it in the manner

intended by the testator was not completed, the instrument shall not, by reason of that

circumstance, be invalid, provided that his non-execution of it can be reasonably ascribed

to some cause other than the abandonment of the testamentary intentions expressed in the

instrument. (e) If the soldier, [airman] or mariner has written instructions for the

preparation of his will, but has died before it could be prepared and executed, such

instructions shall be considered to constitute his will.

(f) If the soldier, [airman] or mariner has, in the presence of two witnesses, given verbal

instructions for the preparation of his will, and they have been reduced into writing in his

lifetime, but he has died before the instrument could be prepared and executed, such

instructions shall be considered to constitute his will, although they may not have been

reduced into writing in his presence, nor read over to him.

(g) The soldier, [airman] or mariner may make a will by word of mouth by declaring his

intentions before two witnesses present at the same time.

The privileged will made by word of mouth shall be null at the expiration of one month

after the testator, being still alive, has ceased to be entitled to make a privileged will.



5. Testamentary Capacity

S.59 of Indian Succession Act, 1925 provides for the capacity of person to make a will. It

states that every person who is of Sound mind not being a minor may dispose of his

property by will. So there are two main requirements which a person must satisfy for

making a will. These are majority and soundness of mind.

Sound Mind: U/s. 59 of ISA the existence of a sound mind is a sine quo non for the

validity of the Will. Most of the Wills are not made by young persons who are fully fit

but are made by persons who are aged and bed ridden. Hence, law does not expect that

the testator should be in a perfect state of health, or that he should be able to give

complicated instructions as to how his property was to be distributed. A sound disposing

mind implies sufficient capacity to deal with and understand the disposition of property

in his Will –

1) the testator must understand that he is giving away his property to one or more objects

2) he must understand and recollect the extent of his property.

3) he must also understand the persons and the extent of claims included as well as those

who are excluded from the Will.

The testator must retain a degree of understanding to comprehend what he is doing, and

have volition or power of choice. Explanation II provides that the persons who are deaf,

dumb or blind can prepare a Will if they are able to prove that they were aware of what

they were doing. Explanation III provides for persons who are mentally ill and insane.

However subsequent insanity does not make the Will invalid i.e. if a person makes a Will

while he is of sound mind and then subsequently becomes insane the Will is valid and is

not rendered invalid by subsequent insanity. Further a person of unsound mind can make

a Will during his lucid interval. A Will made by a person who is intoxicated or is

suffering from any other illness, which renders him incapable of knowing what he is

doing, is invalid.

Majority: A minor who has not completed the age of 18 years or 21yrs if any Guardian

has been appointed by the Court is not capable of making Wills. The onus of proof on

determining whether the person was not a minor at the time of making a Will is on the

person who has relied upon the Will.

Married Hindu Women: Explanation I to S.59 of ISA provides that a Hindu married

woman is capable of disposing by Will only that property which she can alienate during

her lifetime.

Burden of Proof: Though the burden of proof to prove that the Will was made out of free

volition is on the person who propounds the Will, a Will that has been proved to be duly

signed and attested will be presumed to have been made by a person of sound mind,

unless proved otherwise. Further, a bequest can be made to an infant, an idiot, a lunatic or

other disqualified person as it is not necessary that the legatee should be capable of

assenting it.


International Research Journal of Commerce Arts and Science http://www.casirj.com 9

In case of18

H. Venkatachala Iyengar v. B.N. Thimtnajamma & Ors19

., AIR 1959 SC

443, the principles guiding the Courts for consideration of suspicious circumstances of a

Will in question were discussed and they still stand the test of the day even today. It was

observed:

(20) There may, however, be cases in which the execution of the Will may be

surrounded by suspicious circumstances. The alleged signature of the testator may be

very shaky and doubtful and evidence in support of the propounder's case that the

signature in question is the signature of the testator may not remove the doubt created by

the appearance of the signature; the condition of the testator's mind may appear to be

very feeble and debilitated; and evidence adduced may not succeed in removing the

legitimate doubt as to the mental capacity of the testator; the dispositions made in the

Will may appear to be unnatural, improbable or unfair in the light of relevant

circumstances or, the Will may otherwise indicate that the said dispositions may not be

the result of the testator's free will and mind. In such cases the Court would naturally

expect that all legitimate suspicions should be completely removed before the document

is accepted as the last Will of the testator. The presence of such suspicious circumstances

naturally tends to make the initial onus very heavy; and, unless it is satisfactorily

discharged, Courts would be reluctant to treat the document as the last Will of the

testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud

or coercion in respect of the execution of the Will propounded, such pleas may have to be

proved by the caveators; but, even without such pleas circumstances may raise a doubt

as to whether the testator was acting of his own free Will in executing the Will, and in

such circumstances, it would be a part of the initial onus to remove any such legitimate

doubts in the matter.

It was further observed20

:

(21) Apart from the suspicious circumstances to which we have just referred in some

cases, the Wills propounded disclose another infirmity. Propounders themselves take a

prominent part in the execution of the Wills which confer on them substantial benefits. If

it is shown that the propounder has taken a prominent part in the execution of the Will

and has received substantial benefit under it, that itself is generally treated as a

suspicious circumstance attending the execution of the Will and the propounder is

required to remove the said suspicion by clear and satisfactory evidence. It is in

connection with Wills that present such suspicious circumstances that decisions of

English Courts often mention the test of the satisfaction of judicial conscience. It may be

that the reference to judicial conscience in this connection is a heritage from similar

observations made by ecclesiastical Courts in England when they exercised jurisdiction

with reference to Wills; but any objection to the use of the word 'conscience' in this

context would, in our opinion be purely technical and academic, if not pedantic. The test

merely emphasises that, in determining the question as to whether an instrument

produced before the Court is the last Will of the testator, the Court is deciding a solemn

18

Capt. (Retd.) O. P. Sharma and Another v. Kamla Sharma and Others 2008 INDLAW DEL 2099

19 AIR 1959 SC 443

20 H. Venkatachala Iyengar v. B.N. Thimtnajamma & Ors., AIR 1959 SC 443


International Research Journal of Commerce Arts and Science http://www.casirj.com 0

question and it must be fully satisfied that it had been validly executed by the testator who

is no longer alive.

6. Restriction on Wills

Certain restrictions have been imposed on certain categories of wills which has been

declared void on the ground of public policy. These are those wills which were made to

person who are not in existence at the time of making of will. The other kind is will

creating perpetuity.

Unborn Person: Where a bequest is made to a person by a particular description, and

there is no person in existence at the testator's death who answers that description, the

bequest is void. S.113 of Indian Succession Act, 1925 provides that for a transfer to an

unborn person, a prior interest for life has to be created in another person and the bequest

must comprise of whole of the remaining interest of the testator. In Sopher v.

Administrator-General of Bengal21

a grandfather made the bequest to his grandson who

was yet to be born, by creating a prior interest in his son and daughter in law. The Court

upheld the transfer to an unborn person and the Court held that since the vested interest

was transferred when the grandsons were born and only the enjoyment of possession was

postponed till they achieved the age of twenty one the transfer was held to be valid.

In case of Girish Dutta v. Datadin22

, the Will stated that the property was to be transferred

to a female descendant (who was unborn) only if the person did not have any male

descendant. The Court held that since the transfer of property was dependent on the

condition that there has to be no male descendant, the transfer of interest was limited and

not absolute and thereby the transfer was void. For a transfer to a unborn person to be held

valid, absolute interest needs to be transferred and it cannot be a limited interest.

Rule against Perpetuity: S.114 of the Indian Succession Act, 1925 provides that no

bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the

lifetime of one or more persons living at the testator's death and the minority of some

person who shall be in existence at the expiration of that period, and to whom, if he attains

full age, the thing bequeathed is to belong. The rule against perpetuity provides that the

property cannot be tied for an indefinite period. The property cannot be transferred in an

unending way. The rule is based on the considerations of public policy since property

cannot be made inalienable unless it is in the interest of the community. The rule against

perpetuity invalidates any bequest which delays vesting beyond the life or lives-in-being

and the minority of the donee who must be living at the close of the last life. Hence

property can be transferred to an unborn person who has to be born at the expiration of the

interest created and the maximum permissible remoteness is of 18 years i.e the age of

minority in India.

21

AIR 1944 PC 67 22

AIR 1934 Oudh 35



7. Invalid Wills

S.61 of ISA provides that a Will, or any part of Will made, which has been caused by fraud or

coercion or by such importunity, basically not by free will, will be void and the Will would be

set aside.

Fraud: S.17 of the Indian Contract Act provides for fraud. Actual fraud can be

committed through 1) misrepresentation 2) concealment. Fraud in all cases implies a

willful act on the part of anyone whereby, another is sought to be deprived by illegal or

inequitable means, of which he is entitled to. But if a legatee by flattery, succeeds in

persuading a testator to make a will in his favour that will be upheld unless it is tainted

with fraud23

.

Coercion: S.15 of Indian Contract Act defines coercion. Any force or fear of death, or of

bodily hurt or imprisonment would invalidate a Will. In case of Chikam Ameeraju v.

Chikam Sheshama24

, a man threatening to commit suicide induced his wife and son to

give him a release deed. It was held that even though suicide was not punishable by the

Indian Penal Code yet it was forbidden by law and hence the release deed must be set

aside as having been obtained by coercion.

Undue influence: u/s.16 of Indian Contract Act is said to be exercised when the relations

existing between the two parties are such that one of the parties is in the position to

dominate the will of the other and uses that position to obtain an unfair advantage over

the other. However neither fiduciary relationship nor a dominating position would raise a

presumption of undue influence in case of Wills as all influences are not unlawful.

Persuasion on the basis of affection or ties is lawful. The influence of a person in

fiduciary relationship would be lawful so long as the testator understands what he is

doing. Thus it can be said that a testator maybe led but cannot be driven. The influence

by religious preceptor or spiritual adviser or guide may also become undue Influence.25

Uncertainty: S.89 of Indian Succession Act, 1925 states that if the Will were uncertain

as regards either to the object or subject of the Will then it would be invalid. The Will

may express some intention but if it is vague and not definite then it will be void for the

reason of uncertainty. The Will may depose of the property absurdly or irrationally i.e the

intention maybe irrational or unreasonable, but that does not make it uncertain. For

uncertainty to be proved it has to be proved that the intention declared by the testator in

the Will is not clear as to what is he giving or whom is he giving. Only if the uncertainty

goes to the very root of the matter, then only the Will has to be held void on the grounds

of uncertainty.

Non-happening of Contingency: S. 124 of Indian Succession Act, 1925 provides that a

contingent legacy can take effect only on happening of that contingency. A conditional

Will is that will which is dependent on the happening of a specific condition the non-

23

Subramani, SS and Kannan, K, PARUCK THE INDIAN SUCCESSION ACT 1925, 9th

Edition (1995) LexisNexis

Butterwoth, New Delhi at p.178 24

(1912) 16 IC 344 25

Supra note.13 at p.178



happening of which would make the Will inoperative. S.126 of Indian Succession Act,

1925 provides that a bequest upon an impossible condition is void. The conditions maybe

condition precedent or condition subsequent.

Illegal or Immoral: S.127 of Indian Succession Act, 1925 provides that a bequest, which

is based upon illegal or immoral condition, is void. The condition which is contrary,

forbidden, or defeats any provision of law or is opposed to public policy, then the bequest

would be invalid. A condition absolutely restraining marriage would also make the

bequest void. S.138 of ISA provides that the direction provided in the Will as to the

manner in which the property bequeathed is to be enjoyed then the direction would be

void though the Will would be valid.

8. Revocation, Alteration and Execution of Wills

Revocation: 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 the Act

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. The Will maybe burnt or

torn by the testator or by some other person in his presence and by his direction with the

intention of revoking the same. The burning of the Will must be actual and not symbolic.

The burning must destroy the Will atleast to the extent of his entirety. Further the Will

need not be torn into pieces. It would be sufficient if it is slightly torn with the intent of

revocation. The Will can be revoked expressly by another Will or codicil, by implied

revocation, by some writing, by burning or tearing or by destroying otherwise.

Cancellation of a Will by drawing lines across it is not a mode of revocation. Sec 69

provide that will is revoked by the marriage of the testator but under the Hindu Law the

Will is not revoked by marriage or by subsequent birth.

Alteration: 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.

Execution: 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.

9. Technicality and Construction

S.74 of ISA provides that a Will maybe made in any form and in any language. No

technical words need to be used in making a Will but if technical words are used it is

presumed that they are in used in their legal sense unless the context indicates otherwise.

Any want of technical words or accuracy in grammar is immaterial as long as the

intention is clear. Another general principle applied is that the Will is to be so read as to

lead to a testacy and not intestacy i.e if two constructions are possible then the

construction that avoids intestacy should be followed. Further there is another principle,

which says that the construction that postpones the vesting of legacy in the property

disposed should be avoided. The intention of the testator should be decided after

construing the Will as a whole and not the clauses in isolation. In Ganabal Ammal v. T.

Raju Aiyar26

the Supreme Court held that the cardinal maxim to be observed by the Court

in construing a Will is the intention of the testator. This intention is primarily to be

gathered from the language of the document, which is to be read as a whole.

The primary duty of the court is to determine the intention of the testator from the Will

itself by reading of the Will. The SC in Bhura v. Kashi Ram27

held that a construction

which would advance the intention of the testator has be favoured and as far as possible

effect is to be given to the testator’s intention unless it is contrary to law. The court

should put itself in the armchair of the testator (emphasis added).

In Navneet Lal v. Gokul and ors28

the Supreme Court held that the court should consider

the surrounding circumstances, the position of the testator, his family relationships, the

probability that he would use words in a particular sense. However it also held that these

factors are merely an aid in ascertaining the intention of the testator. The Court cannot

speculate what the testator might have intended to write. The Court can only interpret in

accordance with the express or implied intention of the testator expressed in the Will. It

cannot recreate or make a Will for the testator.

26

AIR 1951 SC 103 27

(1994) 2 SCC 111 28

AIR 1976 SC 794



In Kalvelikkal Ambunhi v. H. Ganesh Bhandary29

, it was observed that a Will may

contain several clauses and the latter clause may be inconsistent with the earlier clause. In

such a situation, the last intention of the testator is given effect to and it is on this basis

that the latter clause is held to prevail over the earlier clause. Sec.88 of the Indian

Succession Act, 1925 provide the same.

Following principles have been held to be well established in relation to the construction

of wills30

:

(1) In construing a document whether in English or in vernacular the fundamental rule is

to ascertain the intention from the words used; the surrounding circumstances are to be

considered; but that is only for the purpose of finding out the intended meaning of the

words which have actually been employed.

(2) In construing the language of the Will the Court is entitled to put itself into the

testator's armchair and is bound to bear in mind also other matters than merely the words

used. It must consider the surrounding circumstances, the position of the testator, his

family relationship the probability that he would use words in a particular sense. But all

this is solely as an aid to arriving at a right construction of the Will and to ascertain the

meaning of its language when used by that particular testator in that document.

(3) The true intention of the testator has to be gathered not by attaching importance in

isolated expressions but by reading the Will as a whole with all its provisions and

ignoring none of them as redundant or contradictory.

(4) The Court must accept, if possible such construction as would give to every

expression some effect rather than that which would render any of the expressions

inoperative. The Court will look at the circumstances under which the testator makes his

Will, such as the state of his property of his family and the like. Where apparently

conflicting dispositions can be reconciled by giving full effect to every word used in a

document, such a construction should be accepted instead of a construction which would

have the effect of cutting down the clear meaning of the words used by the testator.

Further where on the two reasonable constructions would lead to intestacy that should be

discarded in favour of a construction which does not create any such hiatus.

(5) To the extent that it is legally possible, effect should be given to every disposition

contained in the Will unless the law prevents effect being given to it. Of course, if there

are two repugnant provisions conferring successive interests, if the first interest created is

valid the subsequent interest cannot take effect but a Court of construction will proceed to

the farthest extent to avoid repugnancy so that effect could be given as far as possible to

every testamentary intention contained in the Will.

29

1995 Indlaw SC 1172 30

Uma Devi Nambiar and Others v. T.C. Sidhan (Dead) 2004 (2) SCC 321



10. Specific and Demonstrative Legacies

Where a testator bequeaths to any person a specified part of his property, which is

distinguished from all other parts of his property, the legacy is said to be specific31

. And

where a testator bequeaths a certain sum of money, or a certain quantity of any other

commodity, and refers to a particular fund or stock so as to constitute the same the

primary fund or stock out of which payment is to be made, the legacy is said to be

demonstrative32

. Explanation to Sec. 150 of the Indian Succession Act states that the

distinction between a specific legacy and a demonstrative legacy consists in this, that-

where specified property is given to the legatee, the legacy is specific; where the legacy is

directed to be paid out of specified property, it is demonstrative. Some of the illustrations

are as follows33

: A bequeaths to B- "the diamond ring presented to me by C", "my gold

chain", "a certain bale of wool", "a certain piece of cloth", "all my household goods

which shall be in or about my dwelling-house in M. Street, in Calcutta, at time of my

death", "the sum of 1,000 rupees in a certain chest", "the debt which B owes me", "all my

bills, bonds and securities belonging to me lying in my lodgings in Calcutta", "all my

furniture in my house in Calcutta", "all my goods on board a certain ship now lying in the

river Hughli", "2,000 rupees which I have in the hands of C", each of these legacies is

specific.

Illustrations showing Demonstrative legacies are34

: A bequeaths to B, 1,000 rupees, being

part of a debt due to him from W. He also bequeaths to C 1,000 rupees to be paid out of

the debt due to him from w. The legacy to B is specific, the legacy to C is demonstrative.

A bequeaths to B-- "ten bushels of the corn which shall grow in my field of Green Acre":

"80 chests of the indigo which shall be made at my factory of Rampur":: An annuity of

500 rupees "from my funded property": "1,000 rupees out of the sum of 2,000 rupees due

to me by C": an annuity, and directs it to be paid "out of the rents arising from my taluk

of Ramnagar" illustrate demonstrative legacies.

The difference between specific and demonstrative legacies is material because where a

portion of a fund is specifically bequeathed and a legacy is directed to be paid out of the

same fund, the portion specifically bequeathed shall first be paid to the legatee, and the

demonstrative legacy shall be paid out of the residue of the fund and, so far as the residue

shall be deficient, out of the general assets of the testator35

. Illustration to this section

clearly present the law as stated: A bequeaths to B 1,000 rupees, being part of a debt due

to him from W. He also bequeaths to C 1,000 rupees to be paid out of the debt due to him

from W. The debt due to A from W is only 1,500 rupees; of these 1,500 rupees, 1,000

rupees belong to B, and 500 rupees are to be paid to C. C is also to receive 500 rupees out

of the general assets of the testator.

31

Sec. 142 of Indian Succession Act, 1925 32

Sec. 150 of Indian Succession Act, 1925 33

Illustration to Sec. 142 of the Indian Succession Act, 1925 34

Illustration to Sec. 142 of the Indian Succession Act, 1925 35

Sec. 151 of The Indian Succession Act, 1925



Another difference between specific and demonstrative legacy is its ademption. When the

property bequeathed does not belong to the testator or converted into property of other

kind than the legacy is adeemed or not or it will take affect or not is determined by the

fact whether it is specific or demonstrative.

If anything which has been specifically bequeathed does not belong to the testator at the

time of his death, or has been converted into property of a different kind, the legacy is

adeemed; that is, it cannot take effect, by reason of the subject- matter having been

withdrawn from the operation of the will36

. Illustrations attached to Sec. 152 provides

that A bequeaths to B-- "the diamond ring presented to me by C": "my gold chain": "a

certain bale of wool": "a certain piece of cloth. A in his lifetime, sells or gives away the

ring: converts the chain into a cup: converts the wool into cloth: makes the cloth into a

garment: takes another house into which he removes all his goods. Each of these legacies

is adeemed. And will not take effect. Whereas a demonstrative legacy is not adeemed by

reason that the property on which it is charged by the will does not exist at the time of the

death of the testator, or has been converted into property of a different kind, but it shall in

such case be paid out of the general assets of the testator37

.

Conclusion

A will is a device or an instrument with the help of which an owner of the property makes

a disposition that is to take effect after his death and which by its very nature revocable.

The other reason for such power is that everybody likes to make sure that the life he has

led has been meaningful and is concerned about his property after his death. If a person

has power to dispose off his property during his lifetime, why he should not be give the

power to provide for the scheme of devolution of his property after his death. Rule of

natural justice also requires that he must also be given power that the property he earned

with hard labour is disposed by him in accordance with his wished not only during his

life, but after his death too. A person can ensure as to how his property should devolve

and to whom it shall devolve, after his death, through a Will. This will also help him to

have authority over those who depend on him and he can use his authority to inculcate

virtue and control vice in his dependent by fear that if his dictates are not followed then

such dependant will not be getting any share in his property. If a person dies without

leaving behind his Will, his property would devolve by way of law of intestate succession

and not testamentary succession i.e. in accordance to the Will. Will is an important

testamentary instrument through which a testator can give away his property in

accordance to his wishes.

Will signifies that a person voluntarily made his wishes as to the devolution of his

property. Hence it must be free from fraud, coercion, undue influence. If the will has

been induced by employment of such craft then court will declare such will as invalid.

36

Sec. 152 of The Indian Succession Act, 1925 37

Sec. 153 of the Indian Succession Act, 1925



The will is also required to be dated because of the rule that the later will revoke all the

former wills.

In India the law governing the will is provided under Indian Succession Act, 1925. 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 throughout India. The Indian

Succession Act, 1925, does not govern Muslims and they can dispose their property

according to Muslim Law.

Law of Testamentary Succession in India

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