Will: Its legalities in a nutshell

Introduction

Will is a legal declaration in the form of a document, expressing the intention of a testator, about how his property would be devolved on whom after his death. It is a personal document of a testator of sound mind, in regard to the disposition of his property in the event of his death. The law authorises any person of full testamentary capacity to dispose of his property by means of a Will.

The legal provisions governing the Will are provided for mainly in Part VI of the Indian Succession Act, 1925. In proving a Will various sections of the Indian Evidence Act, 1872 would apply. 

Testator is a person who makes a Will or testament. The term testator also includes any person appointed by a competent court to administer the estate when the testator does not name an administrator in the Will. The testator of a Will can assign in the Will an administrator (propounder) who has the authority to execute the Will when the testator dies.

Makes pre-planned property devolution

It is always better for a person to make a Will for a pre-planned devolution of his property rather than allow it to devolve 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 at any time when he has competent mental disposition to plan the future devolution of his property.

An insane person when he is undergoing a period of sanity can make a Will. In a state of intoxication or when he does not know what he is doing, a person cannot make a Will.  A testator can both alter and revoke the Will. When he makes a new Will the earlier one will become invalid.

The testator shall either sign or affix his mark to the Will, or get it signed by somebody in his presence by his direction.

Administrator has a role

The administrator of the Will has a prominent part in the execution of the Will. When the administrator is not appointed by the testator the court can issue an authority document called a ‘letter 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 ‘letter of administration’ from the court will have to be obtained to deal with the estate.

Will makes no transfer

A Will conceptually does not as such transfer the title of any property to another. A Will does a quite different purpose. It regulates the succession of property in the manner the testator plans.

A transfer of property is not revocable, but a succession plan based on Will is revocable. A Will operates only in the event of the death of a person. Any person who is not a minor and is of sound mind has the authority to create a Will to dispose of his property.

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.

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 as a Will, but without understanding the nature of it cannot be considered a valid Will.

Even if the registration of the instrument had happened without the testator knowing what was being registered then that instrument termed as Will cannot be considered a valid Will. If the registration was done in a cursory manner, the fact that the Will was registered alone is not sufficient to prove the genuineness of the Will.

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. Such a Will engrossed in perpetuity is not a valid Will.

Proving the Will

The mode of proving a Will does not ordinarily differ from that of proving any other document, except as to 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.

Attestation by witnesses

A deed of Will requires to be attested by two or more witnesses. A Will not attested is not a valid Will.

An attesting witness is a person who in the presence of an executant of a document puts his signature or mark on the document so required to be attested. The sign of the witness is an implied acknowledgement by him of the execution of the Will by the testator.

Both the testator and the witnesses affix the sign in the presence of each other. An attesting witness is not expected to be very meticulous of every details of the Will. For due execution of the Will attestation by two or more witnesses is mandatory.

Execution of the Will means not only signing by the person executing the document but also the attestation of his signature by witnesses as such attestation is required by law.

Proving the attestation

As per section 68 of the Indian Evidence Act,  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 in the manner any other document is proved as per the Section 69 of the Indian Evidence Act. 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 executants (as provided for in section 45 and 47 of the Indian Evidence Act) or by directly comparing the handwriting or signature as the case may be in the Will (as provided in the 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 signature.

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 evidence, as per section 71 of the Indian Evidence Act.

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

Administrator must prove Will

As per section 63 of the Indian Succession Act, a person administering the Will need to prove its due execution, attestation and a sound state of mind of the testator in a way he could gather and the nature of the document proposed as a Will.  Ambiguous or mutually contradictory clauses in a Will should be interpreted according to the intention of the testator as testator’s intention is paramount in interpreting a 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 administrator. If there is suspicion the administrator should explain its circumstances in a convincing manner.

If a Will is registered that is a circumstance to prove the genuineness of the Will. But the mere fact that a Will is registered is not sufficient to dispel all suspicion. 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 quite suspicious one.

A Will made by fraud, coercion or undue urgency cannot be considered to be a due exercise of free agency of the testator.  Similarly, if the evidence relating to registration of the Will shows that registration was done in such a casual manner then that the Will was registered would not be of much value. 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. Such a registration has no much value.

The administrator 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.

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 has also to 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.

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 despite there are some negligible infirmities.

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 his email: rajankila@hotmail.com