Will: Its legal aspects in a nutshell

Introduction

Law relating to Will is a difficult and complicated branch of law. It is mainly because Will comes into effect only after the death of the person making it and it is many a time drafted by someone with little knowledge of law and command over the language. Both of these factors altogether make it necessary for another person or the court to interpret the intention of its maker.

Even Wills of some eminent judges have come in to dispute before the court for want of clarity and legal perfection in them. Therefore accurate understanding of the law of the Will is necessary to make it foolproof or nearly perfect and insulate it from misinterpretation when it is put into operation at a time the maker no longer exists to clarify what he had indented to.

What is a Will?

Will is a legal document, a testator of sound mind prepares during his lifetime for bequeathing (bequeath means leave property by Will to a person) his property to any person, after his death.  

A Will legally declares the intention of a testator with respect to his property.  Bequeathal must be specific denoting clearly every part of the property and distinguishing each one from all other and pointing out whom each one is bequeathed.

Will is something equivalent to a gift. It is the direction of a testator of sound mind as to the disposition of his property after his death. It is a disposal of land or hereditament.

Who can make a Will?

The law states that any person of full testamentary capacity has the right to prepare a Will and dispose of his property by that means.  A Will comes into effect only after the Testator’s death; But the Will can be revoked or altered during his life time when he remains legally and mentally competent to dispose of his property.

A Will must have reference to the death of the person so as to make it legally valid. An order on a bank account on a banker, a cheque, a letter specifying something, a paper containing wishes, a deed of gift, and instrument etc of a person that is created for operation after his death and bequeathing some property to some other person have the effect of Will. 

Importance of Will

Three out of four people, despite knowing about the importance of the Will, die without a Will as they probably refuse to think of death and its consequences in devolution of property to the legatees.

When a person dies without a Will the Will will take care of the distribution of his property among his legal heirs. Otherwise, the law of succession will come into play for the purpose. If so the real needs of each individual among the heirs cannot be taken care of and the disastrous result may follow. Many a time a person dying intestate may lead to never-ending disputes and litigations.

The legal provisions governing it

The legal provisions governing the Will are embodied in Part VI of the Indian Succession Act, 1925. The part is applicable to Hindus but not to Muhammadans. In proving a Will various sections of the Indian Evidence Act, 1872 would apply. 

Rudimentary laws on Will existing earlier were consolidated into a proper law by the Indian Succession Act, 1925. Before 1927 any Hindu could make a Will orally but not now.

Testator, Executor and Administrator

Testator (Executant) makes the Will or testament. The Testator of a Will can appoint an Executor who has the authority to execute the Will when the testator dies. Any person can be appointed as the Executor of his Will by the Testator.

If an Executor is not appointed by the Testator the court competent for the purpose can appoint a person as Administrator to administer the estate by issuing Letters of Administration. When a suit against a Will is pending in the court, the court can appoint an Administrator with all the powers of a general administrator except the power of distributing such estate.

Propounder is the person who produces (propounds) the Will before the Court and wants the Court to rely on the Will for disposal of the deceased person’s property.

Will pre-designs property devolution

It is always better for a person to make a Will for a pre-planned devolution of his property rather than allowing it to be devolved based on the law of succession. The Will itself would spell out in what manner the testator wants his property to be dealt with, after his death. A Will gets into operation only when the testator dies. But a Will is liable to be revoked or altered by the maker of it (Testator) at any time before his death when he has proper mental disposition to plan the future devolution of his property.  When he makes a new Will the earlier one will automatically become invalid. A person can make any number of
Wills, but the last one will legally survive.

No particular form is prescribed for a Will. So anyone can make a Will in plain paper by using common words ordinary people use for daily transactions and by keeping any legal term away.

An insane person even can make a Will if it is made at an interlude when he is undergoing a period of sanity. A person cannot make a Will in a state of intoxication or when he does not know what he is doing or his mind is not sound.  Any person who is not a minor and is of sound mind has the competency to make a Will to dispose of his property to anyone he desires.

Testator’s signing of a Will

The testator shall either sign or affix his mark to the Will, or get it signed by somebody in lieu of putting his sign. Such signing by some other person must be done in his presence, under his direction. The signature shall appear as if it gives effect to the writing in the Will. The Will shall be signed at the foot or end thereof.

Signing means sign his name or affix his mark himself to authenticate the document or get it signed by some other person in his presence and by his direction. Sign or mark includes its grammatical variations and cognate expressions as well.

No Will will be valid unless it is in writing and executed as provided for in the law.

Executor has a role

The Executor of the Will has a prominent part to play in the execution of the Will. When an Administrator is not appointed by the testator, the court can issue an authority document called ‘Letters of Administration’ to administer the estate, as specified in the Will.

If an executor dies before the Will is administered or when an administrator is not appointed, the ‘Letters of Administration’ from the court will have to be obtained to put the Will into effect.

Will makes no transfer as in gift or sale

A Will does not conceptually transfer the title of any property from one person to another. Transfer is a conveyance of an existing property by one living person to another.

A Will serves a quite different purpose. It is a legal expression of the wishes and intention of a person in regard to his properties. It prescribes and regulates the succession of property in the manner the testator desires to take place. A Will does create no right or title or interest on anyone so long as the Testator is alive.

A transfer of property is not revocable, but a succession plan based on Will is revocable so long as the Testator is alive. A Will operates only in the event of the death of a person at a time when no alteration is possible.

Testator’s intention paramount

A testator of the Will who has no proper understanding as to the nature of his property or the persons related to him cannot make a valid Will. A person making an instrument considering it to be a Will, but without understanding the nature and content of the document cannot be termed a valid Will.

Even if the registration of the Will had happened without the Testator knowing what was being registered, then that instrument, though it is called a Will, cannot be considered a valid Will. If the registration of the Will was done in a cursory manner, the registration has no much sanctity. The fact that the Will was registered alone is not sufficient to prove the genuineness of the Will. Registration may take place without the Executant really knowing what was being registered.

In interpreting a Will, the Testator’s intention is to be given effect to. The court must put itself into the armchair of the testator. The true intention of the testator is to be gathered by reading the Will in its entirety and not by attaching importance to isolated expressions.

In a suspicious environment the Administrator of a Will is under an obligation to dispel all the suspicious circumstances in which it may be shrouded.

No perpetuity in Will

A Will should not show any perpetuity in taking its effect. When legacy is given in connection with an uncertain event and no time is mentioned in the Will for its occurrence, the legacy cannot take effect but revolves in never ending loops. Such a Will engrossed in perpetuity without any ending,  is not a valid Will.

Attestation by witnesses

A deed of Will requires to be attested by two or more witnesses. A Will not attested as specified in the law, is not a valid Will.

An attesting witness should, in the presence of the Testator of the Will, put his signature or mark on the Will. Each of the witnesses shall see the Testator sign or affix his mark or some other person sign the Will in the presence and by direction of the Testator. Otherwise, the witness shall receive from the Testator a personal acknowledgment of signature or mark of him or such other person before attesting the Testator’s signature.

It is important to note that both the testator and the witnesses should affix the sign in the presence of each other. However, not more than one witness need be present at the same time to attest the Will. The sign of the witness is his implied acknowledgement of the execution of the Will by the Testator.

An attesting witness is not expected to be very meticulous of all details of the Will. For due execution of the Will, attestation by two or more witnesses is mandatory.

Execution (making or creation) of the Will means not only signing by the person executing the document but also the attestation of his signature by witnesses as required by law.

Proving the genuineness of the Will

The mode of proving a Will does not ordinarily differ from that of proving any other document, except the special requirement of attestation prescribed in the case of a Will as per Section 63 of the Indian Succession Act.

The onus of proving the Will is on the Administrator. In the absence of suspicious circumstances surrounding the execution of the Will, the proof of testamentary capacity and signature of the testator, as required by law, are sufficient to discharge the onus of proving.

Proving the attestation

As per section 68 of the Indian Evidence Act,  in order to prove a document  that requires attestation, one attesting witness need to be called in to provide evidence of its proper execution, if he/she is alive. The direct evidence of the attesting witness is primary evidence.

However if no witness is alive then the signatures of the witness and the testator need to be proved by other means as any other document is proved, as Section 69 of the Indian Evidence Act states. In such a case, such a document need to be proved based on the opinion of others who acquainted with the handwriting or signature of the executant (as provided for in section 45 and 47 of the Indian Evidence Act) or by directly comparing the handwriting or signature in the Will (as provided in Section 73 of the Indian Evidence Act).

Even though expert opinion can be taken to prove a signature, the court itself is sufficiently entitled to make comparison of disputed and admitted signatures.  After handwriting experts make a comparison of the disputed writing and the proved writing, the court should use its own eyes to arrive at a conclusion.

To prove the execution of the Will, mere examination of its scribe or proof of his signature is of no much value. It is better for the scribe to sign as an attesting witness rather than its scribe alone. The scribe is not a legal participant in the execution of a Will but the attesting witness is.

If the attesting witness denies or does not recollect execution of the documents its execution need to be proved by other means, as Section 71 of the Indian Evidence Act states.

In the absence of any suspicious circumstances, the presumption of genuineness of the Will would remain even though the scribe and the witnesses are dead and the Will is not proved by other means.

To prove the genuineness of the Will, the court should consider not only the testimony of witnesses but also the circumstances brought out in evidence.

Executor must prove the genuineness of the Will

A person executing the Will need to prove its due making, attestation and a sound state of mind of the testator as per Section 63 of the Indian Succession Act, 1925. He must prove the nature of the document proposed as the Will in a way he could gather.  The nature of proof required to prove a Will is not different from those required to prove other documents except the requirement of attestation prescribed under Section 63 of the Indian Succession Act 1925.

Ambiguous or mutually contradictory clauses in a Will should be interpreted according to the intention of the testator. The testator’s intention is paramount in interpreting the Will.  

When the evidence brought in is disinterested, satisfactory and sufficient to prove the testator’s mind and his signature, it is not possible for the court to disfavour the Executor of the Will. If there is suspicion the Executor should explain its circumstances in a convincing manner.

If a Will is a registered one that itself is a circumstance to prove the authenticity and genuineness of the Will. But the mere fact that a Will is registered is not sufficient to dispel all suspicion regarding its genuineness. If the Administrator has taken a prominent part in the execution and has received substantial benefit under the Will that itself is a suspicious circumstance. Such a suspicious circumstance needs to be dispelled by cogent and satisfactory evidence. An unnatural circumstance is a suspicious one.

A Will made by fraud, coercion or undue urgency cannot be considered to be a due exercise of free mind of the testator. Similarly, if the evidence relating to registration of the Will shows that registration was done in such a casual manner, then the registration of the Will would not be of much value to prove its genuineness. If the registration officer does not read the Will over to the testator, or does not bring to his attention that he was engaging in the execution of a Will, then the registration of the Will is a suspicious one as that of the Will itself. Such a registration has no value at all.

The Executor must remove any suspicion relating to the Will by cogent and satisfactory evidence if there are any suspicious circumstances surrounding the execution of a Will. The court would look into the inherent probabilities also while examining surrounding circumstances.

No precise equation to prove genuineness

There is no mathematical equation to determine whether a Will is a genuine one or not. The authenticity of a Will depends on the circumstances surrounding its execution and the quality of the evidence that has been brought before the court in respect of its genuineness.

The Administrator has to prove the due and valid execution of the Will. The administrator should also prove that the testator was in sound state of mind, he understood the nature and effect of the disposition, and put his signature to the document of his own free Will.

What the Propounder or Executor must prove

The Propounder of the Will must prove that

• The Will was signed by the Testator in the presence of at least two witnesses
• The Testator was in sound and disposing state of mind at the relevant time
• He understood the nature and effect of the disposition - the contents of it
• He put the signature to the Will of his own free will.

In the case of a Will, the Supreme Court says, it would be difficult to expect proof with mathematical precision. So the test to be applied would be the usual one of the satisfaction of the prudent mind.

Conclusion

Will is a solemn document executed by a person for planned disposition of his property after his death. If the Will is properly executed it would prevent many future clashes and court cases in regard to ownership of property.

In the absence of any suspicious circumstances, the presumption of genuineness of the Will would remain undisputed. Even though some infirmities exist they can be wholly neglected.  

In constructing the Will the court must apply arm chair rule for which the court must place itself in the arm chair of the Testator and find out his intention.  To gather the intention of the Testator of a Will, all the relevant and material contents in the entire document will have to be explored.

Important case laws on Will

1. Nagulapati Lakshmamma v Mupparaju Subbaiah, 1998 [AIR 1998 SC 2904] The judgment says that the attesting witness must sign the document and cannot delegate the function to another person.
2. Jagdish Chand Sharma v Narain Singh Saini [AIR 2015 SC 2149] The witness must see or be knowledgeable of the testator signing the Will.
3. Veerattalingam & others v Ramesh & others [AIR 1990 SC 2201] The Will must be construed as a whole and not piecemeal.
4. N.Krishnammal v R. Ekambaram & ors [AIR 1979 SC 1298] Will written in non-legal language must be construed in the legal sense of the term.
5. Pentakota Satyanarayana & ors v Pentakota Seetharatnam & ors [AIR 2005 SC 4362] Sub-Registrar’s endorsement that the executants had acknowledged execution before him amounts to attestation
6. Janki Narayan Bhoir v Narayan Namdeo Kadam [AIR 2003 SC 761] An attesting whiteness, if he is alive, must be examined so as to prove the Will. If the witness is not alive other means can be explored to prove it.

The author can also be reached at rajankila@gmail.com