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Introduction:
Everybody
likes to make sure that the life he has led has been meaningful
and is concerned about his property after his death. A person can
ensure as to how his property should devolve and to whom it shall
devolve, after his death, through a Will. If a person dies without
leaving behind his Will, his property would devolve by way of law
of intestate succession and not testamentary succession (i.e. in
accordance to the Will) Hence, it is preferable that one should
make a Will to ensure that one's actual intension is followed and
the property is devolved accordingly. Will is an important
testamentary instrument through which a testator can give away his
property in accordance to his wishes. The importance and impact of
a will can be seen through the controversy that arose with regards
to the will of Priyamwada Birla, widow of M.P.Birla, which decided
the fate of the Birla group of Industries.
The origin and growth of Will amongst the Hindus is unknown.
However Wills were well known to the Mohammedans and contact with
them during the Mohammedan rule, and later on with the European
countries, was probably responsible for the practice of
substituting informal written or oral testamentary instruments
with formal testamentary instruments. The Indian Succession Act,
1925, consolidating the laws of intestate (with certain
exceptions) and testamentary succession supersedes the earlier
Acts, and is applicable to all the Wills and codicils of Hindus,
Buddhists, Sikhs and Jainas throughout India. The Indian
Succession Act, 1925, does not govern Mohammedans and they can
dispose their property according to Muslim Law
This project endeavors to analyze briefly all the important
aspects of testamentary succession under Hindu law.
Definition Of Will & Other Related Terms
Will:
A Will is a
solemn document by which a dead man entrusts to the living to the
carrying out of his wishes. S. S.2(h) of Indian Succession Act,
1925 provides that
Will means the
legal declaration of the intention of a person with respect to his
property, which he desires to take effect after his death
Will has been defined in Corpus Juris Secundum as A ‘Will’ is the
legal declaration of a man’s intention, which he wills to be
performed after his death, or an instrument by which a person
makes a disposition of his property to take effect after his
death.
Codicil:
Codicil is an
instrument made in relation to a Will, explaining, altering or
adding to its dispositions and is deemed to be a part of the Will.
The purpose of codicil is to make some small changes in the Will,
which has already been executed. If the testator wants to change
the names of the executors by adding some other names, or wants to
change certain bequests by adding to the names of the legatees or
subtracting some of them, a Codicil in addition to the Will can be
made to do so. The codicil must be reduced to writing and has to
be signed by the testator and attested by two witnesses. It is
also the duty of the court to arrive at the intention of the
testator by reading the Will and all the codicils.
Executor:
An executor is
appointed by the testator, as distinguished from an administrator
who is appointed by the court. Where the Will confers the powers
to collect the outstanding, pay debts and manage the properties,
the person can be said to be appointed as an executor by
implication.
Probate:
Probate is an
evidence of the appointment of the executor and unless revoked, is
conclusive as to the power of the executor. The grant of probate
to the executor however does not confer upon him any title to the
property.
Letter Of
Administration:
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.
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
Attestation Of
Will:
Attesting
means signing a document for the purpose of testifying the
signature of the executants. Therefore an attesting witness
signing before the executants has put his mark on the Will, cannot
be said to be a valid attestation. It is necessary that both the
witnesses must sign in the presence of the testator but it is not
necessary that the testator have to sign in their presence.
Further it is not necessary that both the witnesses have to sign
at the same time. It is also not necessary that the attesting
witnesses should know the contents of the Will.
Essential
Features Of A Will
A Will can be made at any time in the life of a person. A Will can
be changed a number of times and there are no legal restrictions
as to the number of times it can be changed. It can be withdrawn
at anytime during the lifetime of the person making the Will. A
Will has to be attested by two or more witnesses, each of who
should have seen the testator signing the Will.
The essential
features are:
1. Legal
declaration:
The documents
purporting to be a Will or a testament must be legal, i.e. in
conformity with the law and must be executed by a person legally
competent to make it. Further the declaration of intention must be
with respect to the testator’s property It is a legal document,
which has a binding force upon the family.
2. Disposition
of property:
In a Will, the
testator bequeaths or leaves his property to the person or people
he chooses to leave his assets/belongings. A Hindu person by way
of his Will can bequeath all his property. However, a member of an
undivided family cannot bequeath his coparcenery interest in the
family property
3. Takes
effect after death:
The Will is enforceable only after the death of the testator
Under section
18 of the Registration Act the registration of a Will is not
compulsory. Also, the SC in
Narain Singh
v. Kamla Devi
has held that mere non-registration of the Will an inference
cannot be drawn against the genuines of the Will. However it is
advisable to register it as it provides strong legal evidence
about the validity of the Will. Once a Will is registered, it is
placed in the safe custody of the Registrar and therefore cannot
be tampered with, destroyed, mutilated or stolen. It is to be
released only to the testator himself or, after his death, to an
authorized person who produces the Death Certificate
Since a testamentary disposition always speaks from the grave of
the testator, the required standard of proof is very high. The
initial burden of proof is always on the person who propounds the
Will.
Kinds Of
Wills
Conditional
Wills:
A Will maybe made to take effect on happening of a condition. In
Rajeshwar v.
Sukhdeo
the operation of the Will was postponed till after the death of
the testator’s wife. However if it is ambiguous whether the
testator intended to make a Will conditional, the language of the
documents as well as the circumstances are to be taken into
consideration.
Joint Wills: Two or more persons can make a joint Will. If the
joint Will is joint and is intended to take effect after the death
of both, it will not be admitted to probate during the life time
of either and are revocable at any time by either during the joint
lives or after the death of the survivor.
Mutual Wills:
Two or more
persons may agree to make mutual Wills i.e. to confer on each
other reciprocal benefits. In mutual Wills the testators confer
benefit on each other but if the legatees and testators are
distinct, it is not a mutual Will. Mutual Wills are also known as
reciprocal Wills and its revocation is possible during the
lifetime of either testator. But if a testator has obtained
benefit then the claim against his property will lie. Where joint
Will is a single document containing the Wills of two persons,
mutual Wills are separate Wills of two persons.
Privileged
Wills:
Privileged Wills are a special category of Wills and other general
Wills are known as unprivileged Wills. S.65 of ISA provides that a
Will made by a soldier or a airman or a mariner, when he is in
actual service and is engaged in actual warfare, would be a
privileged Will. S.66 provides for the mode of making and rules
for executing privileged Wills. Ss. 65 and 66 are special
provisions applicable to privileged Wills whereas other sections
relating to Wills are general provisions which will be
supplementary to Sections 65 and 66 in case of privileged Wills.
Who Can Make A
Will
S.59 of Indian Succession Act provides that every person who is of
sound mind and is not a minor can make a Will.
Persons Of Unsound Mind
U/s. 59 of ISA
the existence of a sound mind is a sine quo non for the validity
of the Will. Most of the Wills are not made by young persons who
are fully fit but are made by persons who are aged and bed ridden
Hence, law does not expect that the testator should be in a
perfect state of health , or that he should be able to give
complicated instructions as to how his property was to be
distributed. A sound disposing mind implies sufficient capacity to
deal with and understand the disposition of property in his Will -
1) the
testator must understand that he is giving away his property to
one or more objects
2) he must understand and recollect the extent of his property 3)
he must also understand the persons and the extent of claims
included as well as those who are excluded from the Will. In
Swifen v.
Swifen
it was held that the testator must retain a degree of
understanding to comprehend what he is doing, and have a volition
or power of choice.
Minors:
A minor who has not completed the age of 18 years is not capable
of making Wills. The onus of proof on determining whether the
person was a minor at the time of making a Will is on the person
who has relied upon the Will. S.12 of the Indian Contract Act also
provides that a minor is incompetent to contract.
Other Persons
Incapable Of Making A Will:
Explanation I to S.59 of ISA provides that a Hindu married woman
is capable of disposing by Will only that property which she can
alienate during her lifetime. Explanation II provides that the
persons who are deaf, dumb or blind can prepare a Will if they are
able to prove that they were aware of what they were doing.
Explanation III provides for persons who are mentally ill and
insane. However subsequent insanity does not make the Will invalid
i.e. if a person makes a Will while he is of sound mind and then
subsequently becomes insane the Will is valid and is not rendered
invalid by subsequent insanity. Further a person of unsound mind
can make a Will during his lucid interval. A Will made by a person
who is intoxicated or is suffering from any other illness, which
renders him incapable of knowing what he is doing, is invalid.
Though the
burden of proof to prove that the Will was made out of free
volition is on the person who propounds the Will , a Will that has
been proved to be duly signed and attested Will be presumed to
have been made by a person of sound mind, unless proved otherwise.
Further, a bequest can be made to an infant, an idiot, a lunatic
or other disqualified person as it is not necessary that the
legatee should be capable of assenting it.
Revocability
S.62 of the Indian Succession Act deals with the characteristic of
a Will being revocable or altered anytime during the lifetime of
the testator. S. 70 of ISA provides the manner in which it can be
revoked
A mere
intention to revoke is not an effective revocation. The revocation
of the Will should be in writing and an express revocation clause
would revoke all the prior Wills and codicils. If there is no
express clause to the effect then the former Will would become
invalid to the extent of its inconsistency with the latest Will,
this is known as an implied revocation (however it should be shown
that the differences are irreconcilable). However if there is no
inconsistency between the Wills then they cannot be considered as
two separate Wills but the two must be read together to indicate
the testamentary intention of the testator.
Revocation can
also be made in writing through declaring an intention to revoke
and the writing must be signed by the testator and attested by two
witnesses. The deed of revocation has to be executed in the same
way as the Will itself.
The Will maybe burnt or torn by the testator or by some other
person in his presence and by his direction with the intention of
revoking the same. The burning of the Will must be actual and not
symbolic. The burning must destroy the Will atleast to the extent
of his entirety. Further the Will need not be torn into pieces. It
would be sufficient if it is slightly torn with the intent of
revocation.
The Will can
be revoked expressly by another Will or codicil, by implied
revocation, by some writing, by burning or tearing or by
destroying otherwise. Cancellation of a Will by drawing lines
across it is not a mode of revocation. Under the Hindu Law the
Will is not revoked by marriage or by subsequent birth.
Alterations
S.71 of ISA is applicable to alterations if they are made after
the execution of the Will but not before it. The said section
provides that any obliteration, interlineations or any other
alteration in a Will made after its execution is inoperative
unless the alteration is accompanied by the signatures of the
testator and the attesting witnesses or it is accompanied by a
memorandum signed by the testator and by the attesting witnesses
at the end of the Will or some other part referring to the
alterations. the alterations if executed as required by the
section would be read as a part of the Will itself. However, if
these requirements are not fulfilled then the alterations would be
considered to be invalid and the probate will be issued omitting
the alterations. The signatures of the testator and the attesting
witnesses must be with regards to the alteration and must be in
proximity of the alteration. Further they should be in the Will
itself and not in a separate distinct paper. But if the
obliteration is such that the words cannot be deciphered then the
Will would be considered as destroyed to that extent.
Wording Of The
Will
S.74 of ISA provides that a Will maybe made in any form and in any
language. No technical words need to be used in making a Will but
if technical words are used it is presumed that they are in used
in their legal sense unless the context indicates otherwise. Any
want of technical words or accuracy in grammar is immaterial as
long as the intention is clear.
Another
general principle applied is that the Will is to be so read as to
lead to a testacy and not intestacy i.e if two constructions are
possible then the construction that avoids instestacy should be
followed.
Further there
is another principle, which says that the construction that
postpones the vesting of legacy in the property disposed should be
avoided. The intention of the testator should be decided after
construing the Will as a whole and not the clauses in isolation.
In
Gnanambal Ammal v. T. Raju Aiyar
the Supreme Court held that the cardinal maxim to be observed by
the Court in construing a Will is the intention of the testator.
This intention is primarily to be gathered from the language of
the document, which is to be read as a whole.
The primary
duty of the court is to determine the intention of the testator
from the Will itself by reading of the Will. The SC in
Bhura v Kashi
Ram
held that a construction which would advance the intention of the
testator has be favoured and as far as possible effect is to be
given to the testator’s intention unless it is contrary to law.
The court should put itself in the armchair of the testator. In
Navneet Lal v.
Gokul & Ors
the SC held
that the court should consider the surrounding circumstances, the
position of the testator, his family relationships, the
probability that he would use words in a particular sense. However
it also held that these factors are merely an aid in ascertaining
the intention of the testator. The Court cannot speculate what the
testator might have intended to write. The Court can only
interprete in accordance with the express or implied intention of
the testator expressed in the Will. It cannot recreate or make a
Will for the testator.
Execution
Of A Will
On the death of the testator, an executor of the Will (executor is
the legal representative for all purposes of a deceased person and
all the property of a testator vests in him. Whereas a trustee
becomes a legal owner of the trust and his office and the property
are blended together) or an 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 grants probate. A probate is a copy of a
Will, certified by the court. A probate is to be treated as
conclusive evidence of the genuineness of a Will. It is only after
this that the Will comes into effect.
Signature Of
The Testator
S.63(a) of ISA provides that the testator shall sign or affix his
mark. If the testator is unable to write his signature then he may
execute the Will by a mark and by doing so his hand maybe guided
by another person. In another words a thumb impression has been
held as valid.
Restrictions On A Will
1. Transfer to
unborn persons is invalid.
Where a bequest is made to a person by a particular description,
and there is no person in existence at the testator's death who
answers that description, the bequest is void. S.113 of Indian
Succession Act, 1925 provides that for a transfer to an unborn
person, a prior interest for life has to be created in another
person and the bequest must comprise of whole of the remaining
interest of the testator. In
Sopher v.
Administrator-General of Bengal
a grandfather made the bequest to his grandson who was yet to be
born, by creating a prior interest in his son and daughter in law.
The Court upheld the transfer to an unborn person and the Court
held that since the vested interest was transferred when the
grandsons were born and only the enjoyment of possession was
postponed till they achieved the age of twenty one the transfer
was held to be valid.
In
Girish Dutt v.
Datadin
, the Will stated that the property was to be transferred to a
female descendant (who was unborn) only if the person did not have
any male descendant. The Court held that since the transfer of
property was dependent on the condition that there has to be no
male descendant, the transfer of interest was limited and not
absolute and thereby the transfer was void. For a transfer to a
unborn person to be held valid, absolute interest needs to be
transferred and it cannot be a limited interest.
2. Transfer
made to create perpetuity.
S.114 of the Indian Succession Act, 1925 provides that no bequest
is valid whereby the vesting of the thing bequeathed may be
delayed beyond the lifetime of one or more persons living at the
testator's death and the minority of some person who shall be in
existence at the expiration of that period, and to whom, if he
attains full age, the thing bequeathed is to belong.
The rule against perpetuity provides that the property cannot be
tied for an indefinite period. The property cannot be transferred
in an unending way. The rule is based on the considerations of
public policy since property cannot be made inalienable unless it
is in the interest of the community. The rule against perpetuity
invalidates any bequest which delays vesting beyond the life or
lives-in-being and the minority of the donee who must be living at
the close of the last life. Hence property can be transferred to a
unborn person who has to be born at the expiration of the interest
created and the maximum permissible remoteness is of 18 years i.e
the age of minority in India.
In
Stanely v.
Leigh
it was laid down that for the rule of perpetuity to be not
applicable there has to be 1)a transfer 2)an interest in an unborn
person must be created 3)takes effect after the life time of one
or more persons and during his minority 4)unborn person should be
in existence at the expiration of the interest
3. Transfer to
a class some of whom may come under above rules.
S.115 of ISA provides that if a bequest is made to a class of
persons with regard to some of whom it is inoperative by reasons
of the fact that the person is not in existence at the testator's
death or to create perpetuity, such bequest shall be void in
regard to those persons only and not in regard to the whole class.
A number of
persons are said to be a class when they can be designated by some
general name as grandchildren, children and nephews. In
Pearks v.
Mosesley
defined gift to a class as a gift to all those who shall come
within a certain category or description defined by a general or
collective formula and who if they take at all are to take one
divisible subject in certain proportionate shares.
4 Transfer to
take effect on failure of prior Transfer.
S.116 of ISA provides that where by reason of any of the rules
contained in sections 113 and 114 and bequest in favour of a
person of a class of persons is void in regard to such person or
the whole of such class, any bequest contained in the same Will
and intended to take effect after or upon failure of such prior
bequest is also void.
he principle
of this section is based upon the presumed intention of the
testator that the person entitled at the subsequent limitation is
not intended to be benefited except at the exhaustion of the prior
limitation. In Girish Dutt case one S gave property to B for life
and after her death if there be any male descendants whether born
as son or daughter to them absolutely. In the absence of any
issue, whether male or female, living at the time of B’s death,
the gifted property was to go to C. it was held that the gift in
favour of C was dependent upon the failure of the prior interest
in the favour of daughter and hence the gift in favour of C was
also invalid. However alternative bequests are valid.
Invalid
Wills
Wills invalid
due to fraud, coercion or undue influence
S.61 of ISA provides that a Will, or any part of Will made, which
has been caused by fraud or coercion, basically not by free will,
will be void and the Will would be set aside.
Fraud: S.17 of
the Indian Contract Act provides for fraud. Actual fraud can be
committed through 1) misrepresentation 2) concealment . Fraud in
all cases implies a willful act on the part of anyone whereby,
another is sought to be deprived by illegal or inequitable means,
of which he is entitled to.
Coercion:
S.15 of Indian
Contract Act defines coercion. Any force or fear of death, or of
bodily hurt or imprisonment would invalidate a Will. In
Ammi Razu v.
Seshamma
, a man threatening to commit suicide induced his wife and son to
give him a release deed. It was held that even though suicide was
not punishable by the Indian Penal Code yet it was forbidden by
law and hence the release deed must be set aside as having been
obtained by coercion.
Undue
influence:
Undue influence u/s.16 of Indian Contract Act is said to be
exercised when the relations existing between the two parties are
such that one of the parties is in the position to dominate the
will of the other and uses that position to obtain an unfair
advantage over the other. However neither fiduciary relationship
nor a dominating position would raise a presumption of undue
influence in case of Wills as all influences are not unlawful.
Persuasion on the basis of affection or ties is lawful. The
influence of a person in fiduciary relationship would be lawful so
long as the testator understands what he is doing. Thus it can be
said that a testator maybe led but cannot be driven.
Wills Void Due
To Uncertainty
S.89 of ISA states that if the Will were uncertain as regards
either to the object or subject of the Will then it would be
invalid. The Will may express some intention but if it is vague
and not definite then it will be void for the reason of
uncertainty. The Will may depose of the property absurdly or
irrationally i.e the intention maybe irrational or unreasonable,
but that does not make it uncertain. For uncertainty to be proved
it has to be proved that the intention declared by the testator in
the Will is not clear as to what is he giving or whom is he
giving. Only if the uncertainty goes to the very root of the
matter, then only the Will has to be held void on the grounds of
uncertainty.
Will Void Due
To Impossibility Of Condition
S. 124 of ISA provides that a contingent legacy can take effect
only on happening of that contingency. A conditional Will is that
Will which is dependent on the happening of a specific condition
the non-happening of which would make the Will inoperative. S.126
of ISA provides that a bequest upon an impossible condition is
void. The condition maybe condition precedent or condition
subsequent.
Will void due
to illegal or immoral condition
S.127 of ISA provides that a bequest, which is based upon illegal
or immoral condition, is void. The condition which is contrary,
forbidden, or defeats any provision of law or is opposed to public
policy, then the bequest would be invalid. A condition absolutely
restraining marriage would also make the bequest void. S.138 of
ISA provides that the direction provided in the Will as to the
manner in which the property bequeathed is to be enjoyed then the
direction would be void though the Will would be valid.
Bibliography
List Of Cases
Referred
1. A.E.G. Carapeit v. A.Y. Derederin AIR 1969 Cal 359
2. Ammi Razu v. Seshamma ILR 41 Mad 33
3. Bhura v Kashi Ram (1994) 2 SCC 111
4. Bodi v. Venkatasami (1915) 24 Pat 395
5. Charu Chandra v. Kitish Chandra AIR 1948 Cal 351
6. Ganpatrao v. Vasantrao AIR 1932 Bom LR 1371
7. Girish Dutt v. Datadin AIR 1934 Oudh 35
8. Gnanambal Ammal v. T. Raju Aiyar AIR 1951 SC 103
9. Gurdilal Kaur & Ors v. Katar Kaur & Ors (1998) 4 SCC 384
10. Hartley v. Tibber (1853) 16 Beav 510
11. Jotindra Nath v. Rajlakshmi AIR 1933 Cal 449
12. Kasturi v. Ponnammal AIR 1961 SC 1302
13. KV Subbaraju v. C Subaraju AIR 1968 SC 947
14. KV Subbaraju v. C Subaraju AIR 1968 SC 947
15. Lakshmi Chand v. Anandi (1926) 53 IA 123
16. Mt. Gomtibai v. Kanchhedilal (1949) 2 MLJ 469
17. Narain Singh v. Kamla Devi AIR 1954 SC 280
18. Navneet Lal v. Gokul & Ors AIR 1976 SC 794
19. Raghubar v Ram Rakha 1 CWN 428
20. Ram Nath v. Ram Nagina AIR 1962 Pat 481
21. Ramesh Chandra v. Lakahan Chandra AIR 1962 AP 178
22. Ramgopal v. Apina Kunwar AIR 1922 All 366
23. Shermail v. Ahmed Omer 33 Bom LR 1056
24. Sopher v. Administrator-General of Bengal AIR 1944 PC 67
25. Subbarami v. Ramamma (1920) 43 Mad 824
26. Swifen v. Swifen 1 F anf F 584
27. Thrnappa v. I.O. Bank AIR 1943 Mad 743
28. Veerattalingam v. Raesh AIR 1990 SC 2201
29. Virendra Singh Pal v. Kashibat 1998 (4) CCC 602 (MP)
List Of
Statues Referred
1. General Clauses Act, 1897
2. Hindu Succession Act, 1956
3. Hindu Wills Act, 1870
4. Indian Contract Act, 1872
5. Indian Succession Act, 1865
6. Indian Succession Act, 1925
7. Mental Health Act, 1987
8. The Probate And Administration Act, 1981
List Of Books
Referred
1. Paruck
The Indian
Succession Act,
ed. S S Subramani & K Kannan(9th edition, Butterworths, New Delhi,
2002)
2. Sanjiva Row’s,
The Indian
Succession Act, 1925,
ed.Prafulla Pant (seventh edition,Butterworths, New Delhi, 2000)
3. T.P.Gopalakrishnan’s
Law of Wills,
(sixth edition, the Law Book Company (P) Ltd., Allahbad, 1998)
Web Sites
Referred
http://www.organiser.org/dynamic/modules.php?name=Content&pa=show&pid=125&page=29
http://www.rediff.com/money/2004/jul/17spec1.htm
http://www.hinduonnet.com/2001/02/26/stories/0226000k.htm
|
An Overview of Wills under Hindu Law
More
Articles:
The
author can be reached at: sahilmshah@legalserviceindia.com /
