WILL
Will is a legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death. It includes codicil and every writing making a voluntary posthumous disposition of property. It is testamentary instrument by which a person makes disposition of his property to take effect after his death, and which, in its own nature, is ambulatory and revocable during his life. Thus, a Will can be changed by the executants as and when he so likes. It is a secret and confidential document which the executants is never ordered to produce.
There are two essential characteristics of a Will:-
(i) It must be intended to come into effect after the death of the testator; and
(ii) It must be revocable by the testator at any time. Although Wills are usually made for disposing property, they can also be made for appointing executors, for creating trusts and for appointing testamentary guardians of minor children. In one case, the Andhra Pradesh High Court has held that contents of the Will must indicate that it is intended to come into effect after death of testator and that it is revocable at any time prior to his death and a document cannot be treated as a Will by a mere reading of heading of it.
A gift to take effect the life lime of the donor is a deed of settlement and not a Will. A Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will[1].
When a person dies without having made a Will, he is said to have died intestate. His property is then inherited by his legal heirs in accordance with the law of inheritance applicable to him. It must be noted here that legal heirs generally include close family members such as one’s spouse, children, parents, brothers and sisters.
TYPES OF WILL
No Need to mention here that Wills are always effective after death, never in the life time of the testator. Section 63 of the Indian Succession Act, 1925 provides that a Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will, Therefore, the essential characteristic of a Will is its revocability.
Privileged and Unprivileged Wills
According to Sec 63 of The Indian Succession Act, 1925:-
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.
The Madras High Court held in Radhakrishna v. Subraya[2], that if will is execued by affixing a mark, the mark should be fixed by the testator himself. So when the testatrix merely touched the pen and gave it to another who affixed the mark, it was held that there was no valid execution.
(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[3], 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 acknowledgment 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[4].
In Nagulapati Lakshmamma v. Mupparaju Subbaiah[5], the Supreme Court opined that s.63 of the Indian Succession Act, 1925 makes a clear distinction between testator and attestors. The attestor may sign himself or put a mark by himself or direct some other person to sign on his behalf and in his presence. Such privilege or power is not extended to an attesting witness.
Related Cases:-
à In Jaswant Kaur Vs. Amrit Kaur and others [6], the Honourable Apex Court held that the cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. It is an acknowledged principle of law that each decision must be applied according to the facts and circumstances of the given case.
à In PPK Gopalan Nambiar Vs. Balakrishnan Nambiar and others[7], the Honoruable Apex Court held that there must be real, germane and valid suspicious features and not fantasy of the doubting mind.
à In Savithri and others Vs. Karthyayani Amma and others [8], the Honourable Apex Court held that the natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be suspicious circumstances.
à In R.Vasanthi Vs. Janaki Devi and others[9], the Hon'ble Court held that the registration of a Will may having regard to circumstances prove its genuineness.
à In Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs and others[10], the Honourable Apex Court held that debarring natural heirs should not raise any suspicion with regard to execution of the Will in dispute.
à In Sridevi & Ors vs Jayaraja Shetty & Ors on 28 January, 2005, in was held that ''It is well settled proposition of law that mode of proving the will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case.
According to Sec 65 of The Indian Succession Act, 1925:-
Privileged wills- Any soldier being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a will made in the manner provided in section 66. Such wills are called privileged wills.
ILLUSTRATIONS
(i) A, a medical officer attached to a regiment is actually employed in an expedition. He is a soldier actually employed in an expedition, and can make a privileged will.
(ii) A is at sea in a merchant-ship, of which he is the purser. He is a mariner, and, being at sea, can make a privileged will.
(iii) A, a soldier serving in the field against insurgents, is a soldier engaged in actual warfare, and as such can make a privileged will.
(iv) A, a mariner of a ship, in the course of a voyage, is temporarily on shore while she is lying in harbour. He is, for the purposes of this section, a mariner at sea, and can make a privileged will.
(v) A, an admiral who commands a naval force, but who lives on shore, and only occasionally goes on board his ship, is not considered as at sea, and cannot make a privileged will.
(vi) A, a mariner serving on a military expedition, but not being at sea, is considered as a soldier, and can make a privileged will
According to Sec 66 of The Indian Succession Act, 1925:-
Mode of making, and rules for executing, privileged wills
(1) Privileged wills may be in writing, or may be made by word of mouth.
(2) 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.
(h) A 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.
According to Sec 70 of The Indian Succession Act, 1925:-
Revocation of unprivileged will or codicil- No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.
Illustrations
(i) A has made an unprivileged will. Afterwards, A makes another unprivileged will which purports to revoke the first. This is a revocation.
(ii) A has made an unprivileged will. Afterwards, A, being entitled to make a privileged will, makes a privileged will, which purports to revoke his unprivileged will. This is a revocation.
According to Sec 71 of The Indian Succession Act, 1925:-
Effect of obliteration, interlineation or alteration in unprivileged will- No obliteration, interlineation or other alteration made in any unprivileged will after the execution thereof shall have any effect, except so far as the words or meaning of the will have been thereby rendered illegible or undiscernible, unless such alteration has been executed in like manner as hereinbefore is required for the execution of the will:
Provided that the will, as so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.
According to Sec 72 of The Indian Succession Act, 1925:-
Revocation of privileged will or codicil- A privileged will or codicil may be revoked by the testator by an unprivileged will or codicil, or by any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged will, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.
Explanation.--In order to the revocation of a privileged will or codicil by an act accompanied by such formalities as would be sufficient to give validity to a privileged will, it is not necessary that the testator should at the time of doing that act be in a situation which entitles him to make a privileged will.
According to Sec 73 of The Indian Succession Act, 1925:-
Revival of unprivileged will.- (1) No unprivileged will or codicil, nor any part thereof, which has been revoked in any manner, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same.
(2) When any will or codicil, which has been partly revoked and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary is shown by the will or codicil.
Wills executed according to the provisions of section 63 of the Indian Succession Act are called Unprivileged Wills and Wills executed under section 66 of the Act, by a soldier employed in an expedition or engaged in actual warfare, or by an airman so employed or engaged, or by mariner being at sea, are called Privileged Wills. It is provided in the Act that such a Will may be written wholly by the testator with his own hands and, in such a case, it need not be signed or attested; or it may be written wholly or in part by another person, in which case, it may be signed by the testator but need not be attested. If, however, an 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 was recognised by him as his Will. Further, if a soldier, airman or mariner has written instructions for the preparation of his Will, but has not died before it could be prepared and executed, the instructions shall be deemed to be his Will; and if such a person has, in the presence of two witnesses, given verbal instructions for the preparation of his Will, and such instructions have been reduced to writing in his lifetime, but he has died before the Will could be prepared and executed, then such instructions are to be considered to constitute his Will, although they may not have been reduced into writing in his presence, nor read over to him. It is also provided that such a soldier, airman or mariner may make a Will by word of mouth by declaring his intention before two witnesses present at the same time, but such a Will shall become null at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a privileged Will.
An unprivileged Will like Codicil can be revoked by the testator only by another Will or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will can be executed under the Act or by burning, tearing or destroying of the same by the testator or by some other person in his presence and by his directions with the intention of revoking the same.
Mere loss of a Will does not operate as a revocation but where a Will is destroyed by the testator or with his privacy or approbation, it is to be deemed to have been revoked.
No obliteration, interlineations or other alternation made in any unprivileged Will after the execution thereof, can have any effect except so far as the words or meaning of the Will have been thereby rendered illegible or unidiscernible, unless such alteration has been executed in the same manner as is required for the execution of the Will; but a Will, as so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of ht witnesses is made in the margin or some other part of the Will opposite or near to such alternation, or at the foot or end or opposite to a memorandum referring to such alteration, and written at the and or some other part of the Will.
A privileged Will or Codicil may be revoked by the testator by an unprivileged Will or codicil, or buy any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged Will, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. In such cases, it is not necessary that the testator should, at the it time of doing the act which has the effect of revocation of the Will or Codicil, be in a situation which entitles him to make a privileged Will.
Every Will is revoked by the marriage of the maker, except a Will made in exercise of a power of appointment, when the property over which the power of appointment is exercised, would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.
This rule as to revocation of a Will by marriage, does not, however, apply to Wills and codicils executed by Hindus, Buddhists, Sikhs or Jains.
An unprivileged Will which has once been validly revoked cannot be received otherwise than by the re – execution thereon with the prescribed formalities, or by a codicil executed with such formalities and showing an intention to revive the same. When a Will or a codicil, which has been partly revoked and afterwards wholly revoked, such revival cannot extend to so much thereof as has been revoked before the revocation of the whole thereof, unless and intention to the contrary is shown by the Will or codicil.
It has already been stated that in the case of Hindus, Buddhists, Sikhs and Jains a Will could validly be made orally and no formalities for the execution of a Will are required. This rule, however, did not apply to Wills made by Hindu, Buddhists, Sikhs or Jains, on or after the 1st of September, 1870, within the territories which were subject to the Provincial Government of Bengal or in the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, and also, to all such Wills and codicils made outside those territories or limits so far as they related to immovable property situated within these territoes or limits. The execution of such Wills was previously regulated by the Hindu Wills Act (XXI of 1870). Except in the cases mentioned in that Act, oral Wills could be made by person’s professing the Hindu, Buddhist, Sikh and Jain religions. A question, however, arises whether the Indian Succession Act, 1925 has the effect of depriving such persons of the privilege of making oral Wills, or whether the previsions of section 63 of the Act do not merely provide for the formalities which must be observed, if any of such persons chooses to ‘execute’ a Will, i.e., chooses to reduce his testamentary dispositions to writing. It will be observe that section 63 of the Act provides for the manner of ‘execution’ of unprivileged Wills, it does not deal with the question of the ‘making’ of such Wills.
That the Act seems to make a distinction between the ‘execution’ and the ‘making’ of Wills, will appear from a comparison of the phraseology of sections 63 and 66 of the Indian Succession Act, 1925. While section 63 refers to the ‘execution’ of unprivileged Wills, section 63 refers to the ‘execution’ of unprivileged Wills, section 66 prescribes the ‘mode of making’ and rules for executing Privileged Wills’. A distinction, therefore, seems to be contemplate between the ‘execution’ and the ‘making’ of a Will. The former expression apparently applies to cases where the Will is to be reduced to writing, and the expression ‘making of a Will’ includes the execution of a Will and also an oral declaration by the testator of his testamentary disposition of his estate, if such declaration legally amounts to a Will. The matter is a debatable one, and no definite opinion, therefore, need be expressed on it at this stage.
Conditional or Contingent Wills
A Will may be expressed to take effect only in the event of the happening of some contingency or condition, and if the contingency does not happen or the condition fails, the Will is not be legally enforceable. Accordingly, where A executes a Will to be operative for a particular year, i.e.,. if he dies within that year. A lives for more years, after that years. Since A does not express an intention that the Will be subsisting even intestate. A Conditional Will is invalid if the condition imposed is invalid or contrary to law.
Joint Wills
A Joint Will is a testamentary instrument whereby two or more persons agree to make a conjoint Will. Where a Will is joint and is intended to take effect after the death of both, it will not be enforceable during the life– time of either. Joint Wills are revocable at anytime by either of the testators during their joint lives, or aster the death of one, by the survivor.
A Will executed by two or more testators as a single document duly executed by each testator disposing of his separate properties or his joint properties is not a single Will. It operates on the death of each and is in effect for tow or more Wills. On the death of each testator, the legatee would become entitled to the properties of the testator who dies.
Mutual Wills
A Will is mutual when two testators confer upon each other reciprocal benefits by either of them constituting the other his legatee. But when the legatees are distinct form the testators, there can be no position for Mutual Wills.
Duplicate Wills
A testator, for the sake of safety, may make a Will in duplicate, one to be kept by him and the other to be deposited in the safe custody with a bank or executor or trustee. If the testator mutilates or destroys the one which is in his custody it is revocation of both.
Concurrent Wills
Generally, a man should leave only one Will at the time of his death. However, for the sake of convenience a testator may dispose of some properties in one country by one Will and the other properties in another country by a separate will.
Sham Wills
If a document is deliberately executed with all due formalities purporting to be a Will, it will still be nullity if it can be shown that the testator did not intend it to have nay testamentary operation, but was to have only some collaterally object. one thing must be born e in mind that the intention to make the Will is essential to the validity of a Will.
Holograph Wills
Such Wills are written entirely in the handwriting of the testator.
NEED FOR MAKING A WILL
If one does not make a Will then his property will be inherited by legal heirs in accordance with the laws of inheritance applicable to him. However, most of the people would like to dispose of their property according to their own wishes. Thus, there arises the need for making one’s Will. Apart from it there are certain distinct advantages of making a Will.
§ When a person dies without having made a Will, there is often confusion amongst the family members and relatives as to whether the deceased did make any Will prior to his death or not, but if a Will is available, the only question that needs to be ascertained is whether it is the last Will of the testator.
§ A Will be absolutely personal document. More than anything it is an expression of the relationship with the members of family or relatives, etc. The views, opinions and feelings, etc., are indicated in this document. A Will allows the devolution of property in a personalized manner rather than letting the impersonal rules of inheritance take effect.
§ Many disputes can be resolved at the very outset if there is a clear disposition of one’s property in a Will. It will not be out of place to mention the imbroglio of Late Mrs. Indira Gandhi and her daughter-in-law Manekar Gandhi, who were embroiled in a litigation concerning the assets of the late Sanjay Gandhi. Had Sanjay Gandhi left behind a Will, the possibility of any dispute surfacing between the mother and his wife would have been very remote.
§ By means of a Will, one can appoint in writing, a testamentary guardian for his infant children. A testamentary guardian is person, who is appointed b a testament or a Will. This point needs further clarification. In the event of the death of a parent the law would ordinarily uphold the right of surviving natural parent to be the guardian of the child. However, if there is no surviving parent, the law attaches great importance tot eh Will of a parent in deciding who to appoint as a guardian. This is a matter of great importance with regard to the future of the children and therefore, this issue must be discussed in details with the proposed guardian before appointing him testamentary guardian.
§ A Will provides more room inter se the laws of inheritance, which sometimes do not cater to the special needs and requirements of the members of a family. For instance, a father has two sons. One is healthy but the other is handicapped due to any chronic disease since childhood. The laws of inheritance would treat both these children on an equal footing. But by means of a Will one can have somewhat greater provision for a handicapped son, a widowed daughter or an invalid parent. Not only that by means of a Will, one can make some provision for a faithful servant, a nurse a friend in need of money, and so on. All such people could never receive any benefit whatsoever under the laws of inheritance in the absence of a Will.
§ In the absence of a Will even the most unwanted son, who had left the house for disobedience, fraud, violence, etc. may turn up to claim his share of estate from his father’s property. Similarly, an adulterous wife might demand her share as per inheritance laws.
There are however, some disadvantages also in making a Will and they are mostly psychological. In many cases it has been observed that people lose all their interests in life and idem such before the time they would have lived.
If there is no Will, the property would be dealt with as per the laws of inheritance. For Hindus, Buddhists, Jains and Sikhs the laws of inheritance have been codified in the Hindu Succession Act, 1956. For Christians the Indian Succession Act, 1925 will be applicable. Parsis have a different law of inheritance. Similarly, Muslims have their own law. That has, however, not been codified in nay legislation but is based on their religious texts. There are tow major sects of Muslims – Shias and Sunnis. Both of them have different laws of inheritance.
CONCLUSION
The Indian Succession Act, 1865, was originally introduced as the Indian Civil Code, Chapter I into the Governor General’s Council. In the statement of objects and reasons the Hon’ble Mr.Mayne pointed out the scope and the objects of the Act. The object was to prepare for India a body of substantive law relating to testamentary and interstate succession. The English La was to be the basis. But “the principal modification proposed to be effected on the English law consists in obliterating the distinction between real and personal property.” Another object was to do away with all the merely technical consequences of the feudal stage through which immovable property has passed in England. Later, in India, the Indian Succession Act of 1865 was replaced by the Indian Succession Act of 1925. This came into force from 30-09-1925.
BIBLIOGRAPHY
Ë Net Sources:
· wirc-icai.org
· www.vakilno1.com
· indiankanoon.org
· www.legalindia.in
· www.jurisonline.in
Ë Books referred:
· Family Law in India by Prof. G.C.V. Subba Rao
9th edition; Published by: S.Gogia & Co.
Ë Statutes referred:
· The Indian Succession Act, 1925.
[1] Sec 63, Indian Succession Act, 1925
[2] 40 Mad. 550
[3] Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta, 1955 AIR 363 1955 SCR (1)1035
[4] Surinder Kumar Grover vs State & Ors on 24 January, 2011
[5] AIR 1998 SC 2904
[6] 1977 (1) Supreme Court Cases 369
[7] AIR 1995 Supreme Court 1852
[8] 2007 (11) Supreme Court Cases 621
[9] 1999 (III) CTC 378
[10] AIR 1995 Supreme Court 1684
No comments:
Post a Comment