All you ever wanted to know about "The Will"

A 'Will' or 'Testament' is a legal document by which a person, the testator, expresses wishes as to how his/her property (movable or immovable) is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution. Throughout most of the world, disposal of an estate has been a matter of social custom. Any person of the age of majority and having "testamentary capacity" (being of sound mind) can make a will. A minor cannot make a Will. If a person is of unsound mind at the time of making a Will, the Will is not enforceable. A Will is a legal declaration. Certain formalities must be complied with in order to make a valid Will. Will must be signed and attested, as required by law. A Will is intended to dispose off property. There must be some property which is being given to others after the death of the testator.

A Will becomes enforceable only after the death of the testator. It gives absolutely no rights to the legatee (the person who inherits) until the death of the testator. It has no effect during the lifetime of the testator. A testator can change his Will, at any time, in any manner he deems fit. A Will, obtained by force, coercion or undue influence is void as it takes away the free agency of the person. A Will, made under influence of intoxication or in such a state of body or mind, sufficient to take away free agency of the testator, is void as well. A Will can be registered, although of a Will is not compulsory, it can be registered with the sub-registrar. 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. A Will has to be executed by the testator, by signing or affixing his thumb impression on it. It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will. If, at any time, the testator wishes to withdraw the Will, he can do so.

A Will also can be sealed and kept in safe custody. On the death of the testator, an executor of the Will or a 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 will grant probate. A probate is a copy of a Will, certified by the court, and is conclusive evidence that the Will is genuine. If a testator intends to make a few changes to the Will, without changing the entire Will, he can do so by making a codicil to the Will. The codicil can be executed in a similar way as the Will. Will or Codicil can be altered or revoked at any time. In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court. If no objection is received, the probate will be granted. It is only after this, that a Will comes into effect. One can make some provision for a faithful servant, a nurse, a friend in need of money and so on. Further one can fulfill his spiritual desires like creating a trust, donating to good causes like orphanages, temples, old age homes, hospitals, educational institutions, social service organizations etc.

A registered will is kept in the safe custody of the office of the Registry. If an unregistered Will is lost, the testator's wish cannot be given effect as it will be difficult to trace the Will. The Supreme Court has recently held that petition for probate or letters of administration of the Will of a testator must be filed within three years from the date of death of the testator. No probate is necessary for Christian and Muslim Wills. Under Muslim law will by Pardanashin woman is also valid. The executor is the most important person in the will. An executor has a duty to collect and realize the estate of the deceased, pay his debts and distribute the legacies as mentioned in the Will by the testator. The duty of the executor is to probate the Will in the manner required as per law.

The court shall grant probate only to an executor who has been named in the Will. Wills can be revoked, either impliedly or expressly, either by conduct or by a specific document. By conduct, the Will can be presented to be revoked by the testator. For example, a testator may make bequest of property in his Will to a person, but he may dispose of the said property even during his life time. This is called implied revocation. Suppose, the testator makes a bequest of a vacant land in his Will, but subsequently the testator himself constructs a dwelling house therein, in such circumstance, the Will can be deemed to have been expressly revoked by the testator. It is best advised to keep a video recording of a will to minimise potential challenging of will in court of law with respect to its genuineness. In cases where a will has not been made then the law of intestate succession kicks in and his property is acquired by his heirs as per intestate law. A will is a legal declaration for a voluntary posthumous disposition of property. The law relating to wills may be found in the Indian Succession Act, 1925 where Section 58 states the law therein applies to everyone except Muslims. 

The essential characteristics of a will are:

• There must be an intention for the testament to take effect after the testator’s death.

• It is the a legal declaration of intention with respect to property (the declaration is not fulfilled if the forms and formalities prescribed by the law and not fulfilled).

• The declaration with respect to the property must involve a disposition of property and not the mere appointment of a successor.

In absence of an executor, an administrator can be appointed by a competent authority (to administer the deceased person(s) estate). The burden of proving that the maker of a will did so freely and when capable of making the will is upon the individual who propounds the will. If a person is normally insane but has fits of insanity at times and a will is made when sound of mind then the will would be valid. Any person who is capable of holding property can be a will’s beneficiary. This means that even a corporation, a juristic person, minors and someone of unsound mind can be a beneficiary of a will. The property in question must be self acquired property. As concerns ancestral property, Section 30 of the Hindu Succession Act allows a Hindu to give away in his will his share in Coparcenary property which is something that a Hindu is in other circumstances not permitted to do. So far as immovable properties are concerned the making of Wills will be governed by the law of the place where property is situated. However, this proposition is important only if there are properties outside India. So far as movable properties are concerned it will be governed by the law of testator’s domicile.

Types of Wills

Unprivileged and Privileged Wills:

Privileged wills are those that can be made my members of the armed forces employed in an expedition or engaged in actual warfare and can be made in oral form as well. A relaxation of formalities has been envisaged for them considering the inherent dangers and possibility of sudden death coupled with the lack of time and means to deliberately frame written wills. Unprivileged wills are the wills that can be created by every person other than those who can create a privileged will. For a privileged will to be executed it is firstly necessary that it be in writing. The law requires no particular form except that the words must be intelligible and clear. The testator is required to sign or affix his mark on the will or have it signed by another person in his presence or on his direction. Two or more witnesses to the fact of the testator’s assent being expressed by placing of a mark on the will are required. There is no requirement in law for a will to be on a stamp paper. Any attempt by a person propounding a will which was made by oral means has to be strictly proved on very satisfactory evidence. If an instrument purporting to be a Privileged 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. 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. 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 execute 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 indiscernible, unless such alteration has been executed in the same manner as is required for the execution of the Will. A Will, altered, shall be deemed to be duly executed if the signature of the testator and the subscription of 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 end or some other part of the Will. An unprivileged Will that has once been validly revoked cannot be revived 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 an intention to the contrary is shown by the Will or codicil. In case of Hindus, Buddhists, Sikhs and Jains, a Valid Will can be made orally and no formalities for execution of a Will are required. This rule, does 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 territories or limits. The execution of such Wills was previously regulated by the Hindu Wills Act.

Conditional or Contingent Wills:

A Will, expressed to take effect only in the event of the happening of some contingency or condition is a conditional/contingent will. If the contingency does not occur or the condition fails, the Will is not legally enforceable. 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. A Joint Will is intended to take effect after the death of both persons. 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 after 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 two 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 from the testators, there can be no position for Mutual Wills.

Duplicate Wills:

A testator, for the sake of safety, can 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:

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 any testamentary operation, but was to have only some collateral object. It must be understood that intention to make the Will is essential to the validity of a Will.

Holograph Wills:

Wills that are written entirely in the handwriting of the testator.

Oral Wills:

These are not valid in India in the case of Muslims or Soldiers on front.

When a woman is making the will, the word used is 'Testatrix'. A Will can be made for limited portion of a person’s property. Bequest to an unborn person is governed by Section 112 & 113 of the Indian Succession Act. Under the said Sections, a direct bequest in favour of persons not in existence at the time of testator’s death is declared void. By way of exception to the above position the section provides for situation where there is a prior bequest in favour of an existing person which is to precede the bequest to the unborn person who stands in particular degree of relationship to a specified individual and vesting of the bequest is otherwise deferred to such a unborn person until a time later than the death of the testator. In such situation under the above exception if a person answering the description is alive either at the death of the testator or comes in to existence between that event and such later time then the bequest shall go to such person, though he may not have been in existence at the time of testator’s death and if such person is dead than the bequest shall go to his legal representatives. Further u/s 113, bequest to the unborn person has to comprise the whole of remaining interest of the testator in the property bequeathed. In both the situations the bequest cannot remain in abeyance at any point of time. 

Section 117 of Indian Succession Act, provides for accumulation of income wholly or in part for a period of maximum 18 years from the death of the testator. Accumulation beyond this period shall be void. There are certain exceptions to this provision which are as follows:

1. If it is for payment of the debts of the testator or any other person taking any interest under the will, or
2. If it is for provision of portions for children or remoter issue of the testator or of any other person taking any interest under the will, or
3.I f it is for preservation or maintenance of any property bequeathed; and such direction may be made accordingly.

The bequest to an executor mentioned in the Will to carry out the provisions of the Will is invalid unless he proves the will or otherwise manifests an intention to act as executor. Bequest is invalid u/s 67 Indian Succession Act, but the section does not apply to Hindus etc. Hence, it would be valid for Hindus etc. If the testator does not desire to register the Will he and the witnesses can execute the same before a notary. It will be sufficient proof that the Will has been executed by the testator and attested by two witnesses. The notary requires passport size photograph to be affixed to the document at the end. Property which is subject to encumbrance cannot be bequeathed without liability. The liability has to be discharged either by the testator’s estate or by the legatee as provided by the Will. Even if the property such as shares or house in a society contains nomination in favour of wife or son, it can be bequeathed to anyone because the nominee is not entitled to be the owner on the death of the testator, but he holds the same on behalf of the legal heirs mentioned in the Will or on intestacy. The situation will be different if there are joint holders (such as wife or son) on the record. Then, the second holder becomes the owner of the property. If a person who has made the Will ceases to be a Hindu and becomes a Christian he will not be governed by Hindu Law but will be totally governed by all provisions of Indian Succession Act.

ADVANTAGES OF MAKING A WILL

Every person who has assets and property and a family should make a Will whether he is young or aged. Let age and bad health not be a deciding factor for making a will.

In brief the following are the benefits in making a Will:

(i) Different Wills can be executed for different properties.

(ii) It can be easily revoked by following requisite procedure.

(iii) Discretionary trust can be created by Will for tax benefit.

(iv) Capital gain on transfer of capital assets is avoided by giving the property by way of will as against transferring the same during the testator’s life time.

(v) It enables the testator to give the property to anyone he desires as against mandatory provisions of Section 8 (in case of male) or Section 15 (in case of female) under Hindu Succession Act.

For Onerous Bequest, legatee has to take both the legacy and the obligation or neither. He cannot accept only the beneficial bequest and reject or disown the obligation (section 122).On conversion to Islam, convert is to be governed by Mohammedan law. Other Converts as well as reconverts to Hinduism would be governed by Hindu law and the provisions of the Indian Succession Act will apply to them to the same extent as to other Hindus.

DISCRETIONARY TRUST CREATED BY WILL

Discretionary trust by Will is the most commonly utilized mode of tax planning by reason of the second exception to Section 164 of the Income Tax Act. Section 164 provides that where income is receivable under a trust declared by Will the maximum marginal rate is not applicable and only the appropriate rate will be attracted on the income or wealth on such a discretionary trust. Thus, it is most advantageous to create a discretionary trust as regards income left by a testator to a group of legatees.

Applicability of Law of Succession

The law of succession defines the rules of devolution of property in case a person dies without making a Will. These rules provide for a category of persons and percentage of property that will devolve on each of such persons.