All you need to know about making a WILL

Definition

A Will is defined under Section 2(h) of The Indian Succession Act, 1925, according to which a “Will” means a legal declaration of the testator’s intention which he desires to be carried into effect after his death, with respect to his property. The Indian Succession Act does not apply to the Muslims. The Muslim Shariat Law governs the making of wills and its applicability to the Shias and the Sunnis.

Testamentary or testate inheritance, means succession as per the Will of the deceased. On the other hand, Non-Testamentary or Intestate inheritance applies when the deceased dies without making a Will.

Who can make a Will?

1) Section 59 of the Indian Succession Act,1925: Every person of sound mind and is not a minor can make a will.

2) Explanation I to Section 59: A Hindu married woman is capable of disposing only that property which she can alienate during her lifetime, though a Will.

3) Explanation II of Section 59: If the persons who are deaf, dumb or blind can prove that they were aware of what they were doing, they can prepare a Will.

4) A person who is ordinarily insane can make a will during an interval in which he is of sound mind. This implies that, if a person makes a Will while he is of sound mind and then subsequently becomes insane the Will is valid. It is not rendered invalid by subsequent insanity. A Will made during lucid intervals of an unsound person are hence, valid.

However, if an intoxicated person or a person suffering from any illness, by virtue of which he is incapable of knowing what he is doing, the Will so prepared is invalid.

The Testator of the Will has the burden of proof to prove that a free decision to make a Will was made. But, a Will that is proved to be signed and attested carries with it a presumption of being made by a person of sound mind.

Who can be a beneficiary to a Will?

The beneficiary of a valid Will can be an infant, an idiot, a lunatic, other disqualified person. As long as it is a juristic person as it is not necessary that such a person should be capable of assenting it.

In Prakash Soni vs. Deepak Kumar and Ors. MANU/SC/1184/2017, the Supreme Court ruled that one of the essential aspect in determining the genuinity of a Will is, to ensure that the Will was made with free will and mind. Also, it it important to check that the Testator of the Will was psychologically and physically capable of executing the Will. The person who claims a Will to be the final Will has a heavy burden of proof to prove the same to the Court.

In Jaswant Kaur vs. Amrit Kaur and Ors. MANU/SC/0530/1976, the Supreme Court held that a case of execution of Will surrounded by suspicious circumstances stands on a different footing. A shaky signature, a feeble mind, an unjust disposition of property or even another person who takes part in making of the Will under renders him a substantial benefit, etc are circumstances that raise suspicion about the execution of the Will. The Court stated that it is an acknowledged principle of law that, every test must be applied according to the facts and circumstances of a case.

In Savithri and Ors. vs. Karthyayani Amma and Ors. MANU/SC/8061/2007, the Supreme Court held that natural heirs being excluded or given a lesser share, alone without any other reason, cannot be held to be suspicious circumstance.

Property which can be disposed by a Will

The Testator (owner) of any movable or immovable property can dispose such property by a Will.

Restrictions that deem a Will void:

The Indian Succession Act, 1925 in line with the Transfer of Property Act, 1882 imposes restrictions in the following cases:

1) Transfer to person by who is not in existence at testator’s death

Where a Will is made to a person, and such person is not in existence at the testator’s death, the transfer does not take place and hence is void.

In Sopher and Ors. v. Administrator-General of Bengal and Ors. (PRIVY COUNCIL): MANU/PR/0052/1944, a grandfather made the transfer of his property to his yet to be born grandson, by creating a prior interest in his son and daughter-in-law. The Court upheld the transfer of property to an unborn person. The Court ruled that only the enjoyment of possession was postponed till they were 21 years of age. Vested interest was transferred when the grandson was born, hence the transfer was held to be valid.

In Girjish Dutt and Ors. v. Data Din and Ors.MANU/OU/0166/1933, the Will stated that the transfer of property to an unborn female descendant will take place only in the absence of a male heir. The Court held that the transfer of property was dependent on the condition that there was no male heir, the transfer of interest was limited. No absolute interest was transferred and thus, the transfer was void. Absolute and unlimited interest needs to be transferred to an unborn person, for the transfer to be valid.

2) Transfer to person who not in existence at testator’s death, subject to prior transfer

When a Will is made for a person who is not in existence at the time of the testator’s death, irrespective of the fact that there exists a prior transfer before it ultimately is transferred to the next beneficiary, the non-existence of any beneficiary at the time of the testator’s death, the Will of transfer is void, to the extent of the beneficiary’s non-existence.

For example, if property is to be transferred to A for life, and after his death to his eldest son for life, and after the latter’s death to his eldest son. At the time of the testator’s death, A has no son. Here the transfer to A’s eldest son is a transfer to a person not in existence at the testator’s death. The transfer to A’s eldest son for life is void.

3) Transfer made to create perpetuity

Transfer of property is not valid when the vesting of the property is delayed beyond the lifetime of the persons living at the testator’s death.

For example, a sum of money is given to A for his life and after his death to B for his life. After B’s death the fund transfers to the sons of B, who first attain the age of 25. A and B survive the testator. B’s son who first attains the age of 25 may be a son born after the death of the testator; and such son may not attain age of 25 until more than 18 years have elapsed after the death of B. The vesting of funds may thus be delayed beyond the lifetime of A and B. if such a situation occurs, the transfer after B’s death is void.

4) Transfer to not take effect due to failure of prior transfer

When one transfer among a group of persons is void, any transfer that is intended to take effect after the failure of such prior transfer is also void.

For example, A property is to be transferred to A, then B followed by C and D according to a Will. But, the transfer of property to B is for 100 years, which is void due to transfer for perpetuity. Therefore the transfer of property to C and D is also void.

Execution of a Will

The process by which a testator’s Will is made legally valid is known as Execution of Will. It is the expression of the testator’s wishes as to how his property is to be distributed. It is the only way one can ensure that the testator’s assets are distributed according to his wishes after his death.

It must be written, however it can be handwritten, printed, or typed.

Essentials of execution of a Will:

According to Section 63 of the Indian Succession Act, 1925:

a) The testator must sign or affix his markon the Will. However, it can be signed by anoher person in his presence and under his express instructions.

b) The signature or mark of the testator should give effect to the document to be the Will of the testator.

c) The Will concerned should be attested by two or more witnesses. But, it is not necessary that more than one witnesses are requires to be present at the same time,

d) Each witness must see the sign or mark of the testator, but may not necessarily be aware of the contents of the Will.

e) Each witness must sign in the presence of the testator.

In Rajesh Sharma vs. Krishan Kumar Sharma: MANU/DE/1064/2014, it was held that only one attesting witness was required to prove the Will.

he fact that other attesting witness did not file any objection represents that there was no need of calling the second attesting witness.

Cancellation of a Registered Will

A testator has the authority to modify his Will, at any time and in whatsoever manner as he deems fit.

A Will can be made at any time in the life of a person. There is no restriction on how many times a Will can be made by a testator. However, only the last Will made before his death is enforceable.

If the testator wishes to withdraw the Will, he can do so. If a testator wishes to make changes to the Will, without changing the entire Will, he can do so by making a codicil to the Will.

The codicil is executed in a similar way as the Will. A Will or codicil is not unalterable or irrevocable.

Codicil is an instrument made in addition to a Will, explaining, altering or adding to its statements. It is considered to be a part of the Will.

The purpose of codicil is to make minor changes to the Will, which has already been executed.

If the testator wishes to change the names of the executors or wants to add other names, a Codicil to the Will can be made to for modifications. The codicil must be in writing and signed by the testator along with attestation by two witnesses.

Process of Execution of a Will

• On the death of the testator, an Executor of the Will (Executor is the legal representative of a deceased person and the property of a testator vests in him) or an heir of the testator can apply for probate (Probate is an evidence of the appointment of the Executor and unless revoked, is conclusive of the power of the executor. The grant of probate does not confer any title to the property upon the Executor.)
• The court asks the heirs of the deceased for any objections to the Will.
• If there exists no objections, the court grants probate.
• After the grant of probate that the Will comes into effect.

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 (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)

Probate of a Will

According to Section 2 of the Indian Succession Act, 1925, Probate refers to “the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator”. It is nothing but a decree passed by a competent court declaring that the Will is legally enforceable, correct and genuine statement of the deceased testator.

Who can apply for probate of Will?

As under Section 222 of the Indian Succession Act, 1925, a Probate is granted only to an Executor appointed by the Will. The appointment of such an Executor can be expressed or by implied. In the absence of an Executor named in the Will, the beneficiaries under the Will could also seek for the probate of the Will.

For applying a probate, following documents are required:

• The will must be genuine and the will is made by the testator.
• Death certificate of testator.
• Title deed and documents pertaining to the immovable and movable property mentioned in the Will.

The appropriate Court for filing a suit for probate of a Will

Principal Court of Original Jurisdiction, i.e. the District Judge. The High Court also enjoys concurrent jurisdiction to grant probate of the Will.

Procedure for obtaining Probate

For obtaining a Probate, the executor of the Will, can be filed a petition as a petitioner before the Principal Court of Original Jurisdiction or before the Hon’ble High Court under Section 374 of the Indian Succession Act.

After filing the petition the court asks the Petitioner/executor to establish the proof of death of the testator as proof that the Will has been validly made by the testator and also if it is the last Will of the deceased person. Thereafter the court gives a notice in the newspaper to invite public to raise objections, if any. If no objection is raised and the court is satisfied with evidence produced by the executor, Probate will be granted.

In case where the probate is not obtained, in such a scenario, the beneficiaries stand to lose their right over the inherited property. The executors of the Will do the necessary to obtain any action towards claiming ownership in the property.

Also, a photocopy of a Will can’t not be probated under Section 237 of the Indian Succession Act, 1925.

References
1. http://www.legalserviceindia.com/articles/will_hindu.htm
2. https://legalhelpnri.com/importance-of-will-probate-in-india/
3. https://www.hellocounsel.com/probate-of-will/
4. http://www.fortunelegal.in/probate-of-will.html
5. https://taxguru.in/corporate-law/concept-will-india.html
6.https://economictimes.indiatimes.com/consumer-legal/rules-governing-transfer-of-property-through-will/slideshow/6180123.cms