UNDERSTANDING WILLS AND TESTAMENTARY DISPOSITIONS IN INDIA: A COMPREHENSIVE GUIDE

 

INTRODUCTION:

Definition of 'Will' According to Indian Succession Act, 1925:

The term 'Will' is legally defined under Section 2(h) of the Indian Succession Act, 1925, as the declaration of a testator's intentions concerning his property. It is a formal document through which the testator expresses the desire for the disposition of his assets to be carried out after his demise.

Nature of a Will:

A Will, therefore, stands as the legal embodiment of a person's posthumous wishes, outlining how they want their property to be managed and distributed after death. It is essentially an instrument that comes into effect only upon the demise of the testator.

Inclusion of Codicil:

According to the General Clauses Act, 1897, the term 'Will' extends beyond its basic definition. Section 3(64) of the Act broadens the scope by incorporating a Codicil and any writing that involves a voluntary posthumous disposition of property. This inclusion emphasizes the flexibility and expansiveness of the term 'Will' in the legal context.

Codicil Defined by Indian Succession Act, 1925:

In conjunction with the term 'Will,' the Indian Succession Act, 1925, introduces the concept of a 'Codicil' under Section 2(d). A Codicil is an instrument made in relation to a Will, serving the purpose of explaining, altering, or adding to its dispositions. Crucially, a Codicil is considered an integral part of the Will, highlighting its supplemental role in shaping and modifying the primary testamentary document.

 

ESSENTIAL CHARACTERISTICS OF A WILL:

Formal Requirements: A Will must meet the criteria outlined in Section 63 of the Indian Succession Act, including proper execution by a competent person and attestation.

Property Declaration: The declaration in the Will should clearly specify the properties the testator wishes to bequeath.

Operates Post-Death: The Will must explicitly state that it comes into effect after the death of the testator.

Revocable Nature: The testator has the right to revoke or alter the Will during their lifetime, as specified in Section 62 of the Indian Succession Act.

Ambulatory Nature: Wills are subject to modification or alteration by the testator at any time.

In Writing: Post the Indian Succession Act, 1925, Wills (except by Mohammedans) should be in writing.

 

WHO CAN MAKE A WILL:

Section 59 of the Indian Succession Act outlines eligibility for making wills:

General Eligibility:

   - Any person of sound mind, not a minor, can make a will.

Special Provisions for Married Women (Explanation 1):

   - Married women can dispose of property they could alienate in their lifetime.

Inclusivity for Persons with Disabilities (Explanation 2):

   - Deaf, dumb, or blind individuals can make a will if they comprehend the act.

Capacity during Intervals of Sanity (Explanation 3):

   - Persons ordinarily insane can make a will during intervals of sound mind.

Prohibition during Impaired Mental States (Explanation 4):

   - No will can be made while in a state of intoxication, illness, or impaired mental condition.

Testamentary Capacity:

- Sound disposing state of mind is crucial.

- It involves understanding the act, property extent, beneficiaries, and exclusions.

- Testamentary disposition is personal; delegation is not allowed.

 

TYPES OF WILLS:

Privileged Will:

Definition: Governed by Section 65 of the Indian Succession Act.

Eligibility: Soldiers in an expedition, those engaged in actual warfare, airmen in active service, or mariners at sea.

Age Requirement: Must be at least eighteen years old.

Form: Can be made orally and may not necessarily be in writing.

Signing and Attestation: If written by the testator, it need not be signed or attested.

Illustrations: (i) A medical officer in an expedition is considered a soldier in actual employment and can make a privileged will. (ii) A mariner at sea, such as a purser on a merchant ship, can create a privileged will. (iii) A soldier engaged in actual warfare against insurgents is eligible for a privileged will. (iv) A mariner temporarily onshore during a voyage can make a privileged will. (v) An admiral commanding a naval force but living onshore cannot make a privileged will. (vi) A mariner on a military expedition, not at sea, is considered a soldier and can create a privileged will.

2. Unprivileged Will:

Definition: Wills made by individuals not falling under the privileged categories.

Form: Must be in writing.

Signing and Attestation: Must be signed by the testator and attested by two witnesses (except for those made by Mohammedans).

Governing Section: Governed by Section 63 of the Indian Succession Act.

 

LANGUAGE, STAMP DUTY & REGISTRATION OF WILLS:

Language and Form of Will:

Requirement: No specific legal language is mandated for the preparation of a Will. Any form of writing, printing, or typewriting is acceptable.

Clarity: Emphasizes that the language should be simple, free from technical jargon, and easily understandable by a layperson.

Stamp Duty:

Requirement: A Will does not attract any stamp duty. This implies that there is no financial obligation related to stamping when creating a Will.

Registration of Will: (Detailed Procedure For Registeration is given in Annexure I)*

Mandatory or Optional: Registration is not mandatory, as per Section 18(c) of the Registration Act, 1908. It is optional.

Advantages of Registration:

A registered Will holds certain advantages, possibly enhancing its legal standing.

The registration process involves depositing the Will with a Registrar in a sealed cover, bearing the name of the testator and, if applicable, the agent.

Section 42: Specifies the procedure for depositing the Will.

Section 40: Allows the testator or, after their death, any person claiming under the Will to present it to a Registrar or Sub-Registrar for registration.

Attestation of Will:

  The Will must be attested by two or more witnesses, following specific requirements.

Requirements for Attestation:

(i) Witnesses must have seen the testator sign the Will or affix their mark, or have seen someone else sign the Will in the presence and by the direction of the testator.

(ii) Witnesses should receive a personal acknowledgment of the signature or mark from the testator.

(iii) Each witness must sign the Will in the presence of the testator.

Flexibility: No necessity for more than one witness to be present at the same time, and no specific form of attestation is required.

 

CONSTRUCTION OF WILLS: KEY PRINCIPLES AND CONSIDERATIONS

1. Unambiguous Dispositive Words:

Principle: Clear and unambiguous dispositive words in a Will should not be controlled or qualified by any general expression or intention.

Legal Effect: Technical words of known legal import must have their legal effect, even if the testator uses inconsistent words, unless the inconsistency makes it clear that the technical terms were not meant to be used in their proper sense.

Legal Reference: Lalit Mohan Singh Roy v. Chikkun Lai Roy, ILR 24 Cal 834.

 

2. Cardinal Maxim - Ascertainment of Intentions:

Principle: The cardinal maxim in construing a Will is to ascertain the intentions of the testator.

Approach: The document must be read as a whole without speculation on what the testator might have done if better informed or advised.

Legal Reference: Gnambal Ammal v. T. Raju Iyer, AIR 1951 SC 103, 105.

 

3. Relevant Considerations:

Principle: Courts must consider factors beyond the literal words, including surrounding circumstances, the testator's position, family relationships, and probable word usage.

Immersive Interpretation: The court is entitled to put itself in the testator's position.

Legal References: Venkatanarasimha v. Parthasarthy, 41 IA 51, 70 (PC); Gnambal Ammal v. T. Raju Iyer, AIR 1951 SC 103, 106.

 

4. Avoidance of Intestacy:

Principle: If two constructions are possible, and one avoids intestacy while the other involves it, the court may prefer the construction that avoids intestacy.

Construction Rule: Words in a Will must be construed in their ordinary grammatical sense unless a clear intention to use them differently is proved.

Legal References: Kasturi v. Ponnammal, AIR 1961 SC 1302; Guruswami Pillai v. Sivakami Ammal, AIR 1962 Mad 236.

 

5. Effect to Every Disposition:

Principle: Every disposition in the Will should be given effect to the extent legally possible.

Interpretation: The intention of the testator is gathered through a harmonious interpretation of various terms in the Will.

Legal Reference: Rampali v. Chando, AIR 1966 All 584, 586.

 

6. Later Part Prevailing in Irreconcilable Parts:

Principle: In cases of irreconcilable parts, the part that is later in the Will prevails.

Legal Reference: Section 88, Indian Succession Act, 1925; Somasundera Mudaliar v. Ganga Bissen Soni, 28 Mad 386.

Repugnancy Rule: In cases of repugnancy, the last word in the Will shall prevail (CIT v. Indian Sugar Mills Association, (1974) 97 ITR 486 SC).

 

PROBATE AND LETTER OF ADMINISTRATION

 

Probate: A certificate granted by a Competent Court under its seal, certifying a Will as the Will of the testator and granting administration of the estate to the named executor.

 

Letters of Administration: Obtained from a competent court in cases where there is no executor, the appointed executor refuses to act, or dies before administration. Necessary for individuals governed by the Indian Succession Act in cases of intestacy. Not always necessary for individuals of certain religious communities in cases of intestacy.

 

(Annexure I:- Detailed Procedure For Registeration Of Will) 1. Legal Drafting: A qualified lawyer or legal expert is engaged to draft and prepare the will, ensuring it adheres to legal requirements and is clear and unambiguous. 2. Fixing the Registration Date: Once the will is prepared, the next step is to fix a date for its registration at the Sub Registrar office. 3. Payment of Government Fee: Before the registration date, the required government registration fee is paid. The fee may vary based on the jurisdiction and applicable regulations. 4. Visit to Sub Registrar Office: On the scheduled date, the testator (the person making the will) and two witnesses visit the Sub Registrar office for the registration process. 5. Verification and Execution: At the Sub Registrar office, the document is thoroughly examined for compliance with legal standards. If everything is in order, the testator, along with the two witnesses, executes the will in the presence of the Sub Registrar. 6. Fee Payment at Sub Registrar Office: Any additional fees or charges required by the Sub Registrar office are paid on the day of registration. 7. Registration Process: The Sub Registrar oversees the formal registration of the will. This involves the official recording of the document, adding it to the public records. 8. Receipt of Registered Will: After successful registration, a copy of the registered will is provided to the testator. The original document is usually retained in the custody of the Sub Registrar for safekeeping. 9. Safe Custody Options: Depending on local practices, the testator may choose to leave the original will in the safe custody of the Sub Registrar or keep it in a secure place of their choosing. Additional Considerations: Legal Expertise: Involving a legal professional in the drafting and registration process ensures that the will is legally sound and compliant with relevant regulations. Optional Nature of Registration: While registration offers additional legal validity, it is not mandatory for the will to be legally enforceable. This streamlined process ensures that the will is officially recognized and recorded, providing clarity and legal standing to the wishes of the testator. Always check with the local Sub Registrar office for specific requirements and procedures in your jurisdiction.

 

CONCLUSION

Understanding the intricacies of creating, executing, and interpreting Wills is crucial for individuals wishing to plan the disposition of their estates. The legal framework provided by the Indian Succession Act, 1925, ensures clarity and fairness in carrying out the last wishes of testators. As a vital legal instrument, the Will requires careful consideration and adherence to formalities to prevent disputes and ensure a smooth transition of assets.

 

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Article Compiled by:-

Mayank Garg

(LegalMantra.net Team)

+91 9582627751

Disclaimer: Every effort has been made to avoid errors or omissions in this material in spite of this, errors may creep in. Any mistake, error or discrepancy noted may be brought to our notice which shall be taken care of in the next edition In no event the author shall be liable for any direct indirect, special or incidental damage resulting from or arising out of or in connection with the use of this information Many sources have been considered including Newspapers, Journals, Bare Acts, Case Materials , Charted Secretary, Research Papers etc.

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