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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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