As the term will indicates, it signifies a wish, desire, choice etc., of a
person. A person expresses his will as regards the disposition of his property.
The Act defines a will to mean "the legal declaration of the intention of the
testator with respect to his property which he desires to be carried into effect
after his death".
The Hindu Succession Act, 1956, applies to any person who is a Hindu, Buddhist,
Sikh, Jain and to any other person who is not a Muslim, Christian, Parsi or Jew
by religion. Clause (i) of section 5 of the Hindu Succession Act provides that
the said Act does not apply to any property, succession of which is regulated by
the IS Act by reason of the provisions contained in section 21 of the Special
Marriage Act, 1954.
Sec. 21 of the Special Marriage Act, 1954, reads as under:
"Notwithstanding any restrictions contained in the IS Act, 1925, with respect to
its application to members of certain communities, succession to the property of
any person whose marriage is solemnized under this Act and to the property of
the issue of such marriage shall be regulated by the provisions of the said Act
and for the purposes of this section that Act shall have effect as if Chapter
III of Part V (Special Rules for Parsi Intestates) had been omitted.
Part VI of the Indian Succession Act deals with the testamentary succession.
Any property can devolve in two ways:
Will is defined under section 2(h) of The Indian Succession Act, 1925 as
- Testamentary Succession:
Where any person governed under the Act leaves behind any will or codicil
which instructs the executor how the property has to used or those who have
rights over that property.
- Intestate Succession:
A person is said to have died intestate when he dies without making any
testamentary disposition concerning any of his properties.
"Will" means the legal declaration of the intention of the testator with respect
to his property which he desires to be carried into effect after his death.
The essential characteristics of a will are as follows:
- It is a legal declaration of the intention of the testator;
- The declaration is with respect to the testator's property;
- The intention manifests only after the testator's death, i.e.,
posthumous disposition of his property. Till the testator is alive, the will
has no validity. He can dispose of all his properties in a manner contrary
to that stated in the will and such action would be totally valid. E.g., A
makes a will bequeathing all his properties to his brother. However, during
his lifetime itself, he transfers all his properties to his son with the
effect that at the time of his death he is left with no assets. Such action
of the testator cannot be challenged by his brother on the ground that he
was bound to follow the will since the will would take effect only after the
death of the testator. In this case as the property bequeathed would not be
in existence, the bequest would fail.
- The will can be revoked at any time by the testator in his lifetime.
Thus, the will is a testamentary document executed by a living person which
takes effect on his death. A will may also be called a 'testament'. A will
can never be irrevocable. The very nature of a will is such that it the
person making it can change it as often as he likes.
For a valid will conditions must be satisfied. According to section 63 of the
Indian succession act, 1925:Conditions:
In general, the order of preference to distribute asset to legatees and their
- The testator should sign or affix his mark. (e.g., thumb mark)
- The Will must be attested by 2 or more witnesses.
- The witnesses must have seen the testator sign or affix his mark to the
- Each witness shall sign the Will in the presence of the testator.
- The witness should not be a beneficiary under the Will.
Rules governing transfer of property through will:
- Other Relatives
- Friends. Many people prefer giving something to charity too.
Wills made are of many types such as:
- The Indian Succession Act, 1925
- The Code of Civil Procedure, 1908
- The Indian Registration Act, 1908
- The Indian Stamp Act, 1899
Capacity of testator and legatee:
- Conditional / contingent will
A conditional or contingent will is one which depends for its operation upon the
happening of a specified condition or contingency. If the condition fails, the
will is inoperative and void thereafter.
- Joint will
A joint will is a legal document executed by two (or more) people, which merges
their individual wills into a single, combined last will and testament. Like
most wills, a joint will lets the will-makers name, the person who will be
getting their property and assets after they die. Joint wills are usually
created by married couples. In such Joint Wills when all the testators are
alive, a single testator cannot revoke the will alone. He/ She would require the
consent of other testators to revoke their joint will. Only when all other
testators have died, the sole surviving testator can revoke the will alone.
- Mutual will
Mutual will is a type of will, usually executed by a married or committed
couple, which is mutually binding. After one party dies, the remaining party is
bound by the terms of the mutual will.
- Duplicate will
As the name suggests, when there are two copies of a will, then those wills are
called Duplicate Wills. There are two copies of the will although it is
considered as a single will. It is very simple to create a duplicate of the
will. The testator has to make a second copy of the will and shall sign it and
get it attested in the way that he did for the original will as per Section 63
of the Indian Succession Act, 1925. One copy can be kept with the testator and
the other might be kept in safe custody somewhere like in a bank locker, with a
trustee, the drafting attorney or with the executor. The testator with an
intention to protect the execution of the will after his death makes a copy of
the will. If the testator destroys the copy of the will that he has in his
custody then, that would automatically revoke the other will.
- Concurrent will
Concurrent Wills are written by one person wherein two or more Wills provide
instructions for disposal of property for the sake of convenience. For instance,
one Will could deal with the disposal of all immovable property whereas another
Will deals with the disposal of all movable property.
- Unprivileged Will
Will created by a person who is not a soldier employed in an expedition or
engaged in actual warfare or a mariner at sea is known as an unprivileged Will.
For an unprivileged Will to be valid, it must satisfy the following conditions:
- The person creating the Will must sign or affix his/her mark to the Will.
Else, some other person should sign as per the directions of the testator
(Person creating the Will) in his/her presence.
- The signature or mark of the testator or the signature of the person
signing for the testator must be placed so that it appears that it was
intended to give effect to the writing as Will.
- The two or more witnesses should attest to the will. The witnesses must
have seen the testator sign or affix his mark to the Will or has seen some
other people sign the Will, in the presence and by the direction of the
- Privileged Will
Privileged wills are wills that may be in writing or made by word of mouth by
those in active services like a soldier, airman or mariner. The legal
requirement for the validity of a privileged Will has been reduced to enable
certain persons to quickly make a Will. The following conditions are applicable
for a privileged Will:
In the case of Sunita Shivdasani vs. Geeta Gidwani, it was held that although
privileged wills are oral but requirements of Section 66 of the Act must be
complied with including the presence of two witnesses at the time when the oral
will is made. A will made by word of mouth is null at the expiry of one month.
- The testator writes the whole will with his own hand. In such a case, it
need not be signed or attested.
- The testator should sign the privileged Will written wholly or in part
by another person. In such a case, there is no requirement for attestation.
- A Will written wholly or partly by another person and not signed by the
testator is a valid Will if it is proved that it was written by the
testator's directions or that the testator recognized it as his/her Will.
- A half-completed privileged Will is also considered valid if it is
proved that non-execution was due to some other reason and does not appear
to be an abandonment of intentions to create a Will.
- A privileged will can be made by word of mouth by declaring intentions.
- If a soldier or airman or mariner has given written or verbal
instruction for the preparation of a Will but has died before it could be
prepared and executed. And such will is a valid Will.
- Sham Wills
Sham Wills are executed but held invalid if the testator does not intend to
execute as per his/her wishes. As per the Indian Succession Act, a Will made by
fraud or coercion or by taking away the free agency of the testator is
- Holograph Wills
The testator writes this holograph wills entirely in its own handwriting.
Every person who is competent to contract may make a will but he must be major,
sound mind and willing to write a Will. Any person who is the sole owner of a
self-acquired property can bequeath by way of will. A person of unsound mind can
also make a will but only in lucid intervals. A Will cannot be made by some
persons i.e. minors, insolvent, persons disqualified under any law by the court.
A Will executed by a minor is void and inoperative though a testamentary
guardian can be appointed for the minor to dispose the property. A Will can be
made by the deaf and dumb person by showing consent through writing or gestures
in sign language. Nothing prevents a prisoner or alien in India from drawing a
Will. As per Section 59 of the Indian Succession Act, 1925, the person making
the Will must be of:
- Sound mind
Furthermore, the section states that a person ordinarily of unsound mind may
make a Will during the interval of the soundness of his/her mind. The section
prohibits a person from making a Will when in a state of intoxication or illness
which makes him/her incapable of understanding the consequences of the act.
Any person capable of holding property can be a legatee under a will and
therefore a minor, lunatic, a corporation, a Hindu deity and other juristic
person can be a legatee. Sections 112 to 117 of 'Indian Succession Act, 1925'
put some restrictions on the disposition of property by will in certain cases.
Dispositions of property by will in some cases have been declared void. If the
minor person has been named as legatee by a testator then a guardian should be
appointed by the testator himself to manage the bequeathed property.
In the case of Sanjeev Juneja vs. State & Ors.,the court held that the
expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925
which means the legal declaration of "the intention" by the testator, with
respect to his property, which he desires to be carried out after his death.
Also Section 59 of Indian Succession Act, 1925 governs the capability of person
to make a Will.
How a will is made and executed
STEP 1: Firstly, all the essentials of a will as mentioned need to be adhered
- Details of the testator-The name, age, address and other details
- Declaration -It is very important that the testator declares that he/she
is of sound mind and free of any coercion while drawing the will.
- Details of the beneficiary-The details of who shall be benefitting out of this
will and to whom shall the assets be divided should be given as their name, age,
address and relation to the testator.
- The executor of the will -It is very important to appoint an executor who
would ensure that the will is carried out according to the directions provided
by the testator. The name, age, address and relation to the testator should be
specified as well.
- Details of property and assets - It is pertinent to list out all the
details of the assets and properties that a testator has, and which are the
ones that shall be covered in the will. He/she can also list out any
specific assets that are there.
- Division of share - The share that each beneficiary has on the property
or the specifics of who shall get what is to be listed in full detail. If
the asset is to be given to a minor, then a custodian for the minor should
also be listed in the will.
- Specific Directions - The testator should give directions in terms of
executing the Will and should specify if there are any instructions
- Witness - There should be a signature by the testator in the presence of
at least 2 witnesses. The witnesses do not need to know the details of the
will they just have to verify that the signature by the testator was done
before them. Witness shall not be the beneficiary of the will signed.
- Signature - The testator should sign with the date on the will after the
STEP 2: It is advisable to consult the family lawyer before drafting the will. A
will can either be drawn by the testator himself or through his lawyer.
STEP 3: A will is executed by ensuring the signature of the testator in the
presence of the two witnesses and their signatures as well.
STEP 4: It would be beneficial if a will is registered and properly stamped as
it helps in ensuring proper execution.
Section 71 of the Indian succession act deals with the alterations made in the
will. It says that no alteration shall be made in the will to be done after the
execution of the will and if so done, it shall have no effect. But if the
alterations done are having the signature of the testator and the attesting
witnesses, then the same can be executed. Alterations are not done in the
original will rather on a separate document known as codicil and the same is
attached with the original will.
In the case of Dayanandi vs. Rukma D Suvarna & Ors
, the court observed that no
signature of the testator was made in the margin or at other part of will or
near the alterations made, so the court stated that if such alterations have not
been made in the manner prescribed under Section 71, such alterations shall have
The execution of a will shall only take place after the death of the testator
and not before that. The will is made by the testator but the same is executed
by another person called executor, a legal representative of the testator. The
executor should check that the testator has signed and affixed the will in the
presence of two or more witnesses. The will shall be executed if no other party
is dissatisfied with the things mentioned in the will and to whom it is being
In the absence of contrary intention in the will, the description of the
properties in the will shall be deemed to refer to and include the property
answering that description at the death of the testator. Ittianam and Ors. v.
Cherichi alias Padmini
[(2010) 7 SCALE 495]
The statement of objects and reasons of the Hindu Wills Act, 1870 (now repealed)
brings out the reasons for a marriage amongst the Hindus, Buddhists, Sikhs or
Jains not having the effect of revoking a Will as the marriage does not create
such a change in the testator's condition as to raise a presumption that he
would not adhere to a Will made previously.
Revocation of Wills can take place in the following manner:
Property which may be disposed by will:
- By execution of a subsequent will
- By some writing and declaring an intention to revoke the will
- Burning of the will
- By tearing of the will
- Otherwise destroying the will
Prior to the Hindu Succession Act, 1956, a Hindu could not, by will, bequeath
property which he could not have alienated by gift inter-vivos. Even after the
Hindu Succession Act, a Hindu cannot, by will, so dispose of his property as to
defeat the legal right of his wife or any other person to maintenance mentioned
in sections 18 to 22 of the Hindu Adoptions and Maintenance Act, 1956.
the above rule that a Hindu cannot, by will, bequeath property which he could
not have alienated by gift inter-vivos is now altered by Section 30 of the Hindu
Succession Act, 1956, which permits a member of a Mitakshara coparcenary to
dispose of, by will, his undivided interest in the coparcenary property.
As regards property which a Hindu could dispose of by will, the following five
propositions under the ancient uncodified Hindu law may be noted:
- A Hindu could not, by will, dispose of his entire property, so as to
defeat the claim of his wife and of other persons who are legally entitled
to maintenance from him.
Promothanath v. Nagendrabala, 12 C.W.N. 808
- The power to make wills could be exercised in regard to the separate or
self-acquired property of the testator. In this respect, there was always an
agreement among all schools of Hindu law. In regard to coparcenary property, the
power to make wills differ according to different schools of Hindu law. The
Dayabhaga School recognised the right of a coparcener to dispose of his interest
in the joint family property by will. According to the Mitakshara School,
however, no coparcener could dispose of his undivided interest by will, even if
the other coparceners consented to such disposition. The right of survivorship
prevailed against any will made by the coparcener. (However, today, under S. 30
of the Hindu Succession Act, a Hindu may dispose of, by will or other
testamentary disposition, even his interest in a coparcenary property.)
- The owner of an impartible estate could dispose of such estate by will,
except when the nature of the estate did not admit of such alienation or there
was a special custom prohibiting such alienation.
- A Hindu female could dispose of her stridhana property by will, except when
the stridhana was non saudayika, in which case the consent of the husband was
required to validate the will. (However, now under S. 14 of the Hindu Succession
Act, any property possessed by a female Hindu, whether acquired before or after
the commencement of the Act, becomes her absolute property, and she becomes the
absolute owner of such property and is, therefore, entitled to dispose of such
property by will.
- A sole surviving coparcener could dispose of his property by will, but
such disposition would be inoperative against a subsequently born or adopted
son. This rule was true in regard to coparcenary property, but a Hindu adopting a son
could make a will in regard to his separate property, and the adopted son could
not challenge that right. Sri Raja Venkata Surya v. Court of Wards, 22 Mad. 383.
Will is considered to be the voice of the testator and it conveys how the person
wants his property to be used after his death. Such wills must be protected and
proper registration helps in validating the will. A person cannot give his
ancestors property in the form of a Will but he can make a Will only of his
A Will does not involve any transfer nor affect any transfer inter-vivos but it
is an expression of intending to appoint a person who will look after the
properties after his (testator's) death. A Will regulates the succession and
provides for succession as declared by the testator.
- Family Law II by Poonam Pradhan Saxena 4th edition
- Indian Succession Act,1956
- Hindu Succession Act,1956
- Hindu Wills Act,1870
- Hindu Adoptions And Maintenance Act, 1956.