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Will: An Exploration of its Multifaceted Dimensions

The expression 'Will' is defined in section 2(h) of Indian Succession Act, 1925, and it means the legal declaration of the intention of a testator (maker of Will) with respect to his property, which according to his desire will take effect on or after his death.

A Will is an important document which enables the individual/any living person to rightfully leave his assets and wealth, to whomsoever he chooses to, after his death. Will is defined as the legal declaration of the intention of the testator.

Essential Characteristics of a Will
The followings are the essential characteristics of a Will:
  1. There must be a legal declaration of the intention of the testator;
  2. The declaration must relate to the property of the testator;
  3. Such declaration could be effective and operative only after the death of the testator;
  4. The testator is fully competent and has fullest liberty to revoke the Will at any time during the period he is alive;
  5. Every person who is not a minor and is of sound mind is free to make a Will, which shall be perfect and binding, if it is free from fraud, coercion, and/or undue influence.

Utility of Will
Execution of a Will has no rigid requirements; however, statistics show that three out of four people die without a Will and although all agree that it is important to have a Will, many people refuse to write a Will because they just can't bring themselves to think about their death. If a person dies without executing a Will, then it's for law to decide to whom his/her property is distributed and may in some cases choose guardians for his/her children. To ensure the carrying out of your wishes and prevent confusion and fighting over your estate, the document in the form of a Will is very useful.

Format of Will
Although there is no prescribed form or language for executing a Will, but in order to be effective, it needs to be properly signed and attested by two witnesses. There should be no ambiguity relating to the intention of the testator. A Will can be revoked, changed or altered at any time by the testator. In required cases, probate/letters of administration can be applied for in a court of competent jurisdiction. A probate granted by a competent court is conclusive evidence of the validity of a Will. A probate cannot be granted to a minor or a person of unsound mind and the court has to wait until the expiration of seven days from the date of testator's death. The applicable laws are Indian Succession Act, 1925, Hindu Personal Laws, Muslim Personal Laws and the Registration Act, etc.

After completing your Will, you must sign it where indicated, in the presence of two witnesses. The witnesses must not be blind, and each of them should be adult (aged 18 or above). Any person, who is beneficiary in the Will, or whose spouse is beneficiary in the Will should not be a witness, and neither should any such person be appointed an executor in such circumstances.

Before the witnesses can sign, it's essential for you to sign the Will. The witnesses have to be physically present together when you sign, and they must both see you sign.

After the testator has signed the Will, the witnesses must sign it where indicated. The testator has to be present when each witness signs, and it is best if all the three (i.e., you and both witnesses) are all present together.

It is always safe to sign each page of the document at the end of the page to safeguard that nothing can be added in the document to create confusion at the time it is implemented. By signing each page of your Will, you eliminate the chances of forgery. To prevent this, the event of execution and registration of the Will can also be videotaped and kept in safe custody, so that this can be used to prove the document of Will, if challenged by any one of the family members. As a safety and precaution, you need not reveal the contents of your Will to anyone. Not much skill is required for executing a Will, but the standards of safety and precaution must be rigorous to prevent unfair litigation and family discord.

Kinds of Will
Privileged Will
Privileged Will is one made by any soldier while in actual warfare, or an airman or mariner at sea, of at least 18 years, despite of it being not attested, or not duly attested, or not having read to him because he died while doing so. The benefits of a privileged will encompass the fact that it doesn't necessitate the signatures of two witnesses. Furthermore, privileged wills don't demand registration or the payment of stamp duty.

Unprivileged Will
Unprivileged Will is made by any other person including any soldier. Mariner, airman who is not at war; and must be attested by two witnesses and signed by the attestator. Any person who is of sound mind and has reached the age of majority (18 years) can create an unprivileged will. Limitations associated with an unprivileged will include the necessity for obtaining the signatures of two witnesses. Additionally, to validate an unprivileged will, it must undergo registration or bear a stamp.

Conditional or Contingent Will
A Will can be structured to come into effect only under specific conditions or contingent upon particular circumstances. Such a Will, valid solely if certain contingencies or conditions are met, is referred to as a Conditional or Contingent Will.

Joint Will
A Joint Will is a unique type of Will in which two or more individuals agree to create a single Will together. When a Joint Will is designed to take effect after the passing of both parties, it remains non-enforceable during the lifetime of either individual. At any point during their joint lives or after the demise of one party, the joint will can be revoked.

Concurrent Will
Concurrent Wills are drafted by a single person and serve the purpose of conveniently providing instructions for the disposal of different categories of property. For instance, one Will could address the disposition of immovable property, while another Will pertains to the disposal of movable assets.

Mutual Will
In a Mutual Will, the testators confer reciprocal benefits upon each other. Typically, a husband and wife execute a Mutual Will to ensure that all benefits are passed on to the surviving spouse during their lifetime.

Duplicate Will
A Duplicate Will is created for the sake of security or safekeeping and may be stored with a bank, executor, or trustee. It's important to note that if the testator destroys the Will in their possession, the other Duplicate Will is also considered revoked.

Sham Will
Sham Wills are those that are formally executed but can be deemed invalid if it's evident that the testator didn't genuinely intend to follow its provisions. Under the Indian Succession Act, a Will created through fraudulent means, coercion, or by undermining the free will of the testator is considered null and void.

Holograph Will
Holograph Wills are entirely handwritten by the testators themselves, reflecting their own wishes and intentions.

Executor, Legatee/Beneficiary, Probate and Testator
The legal terms used in the Will are Executor, Legatee/Beneficiary, Probate and Testator. Executor is the legal representative, for all purposes of a deceased and the entire property of the Testator vests in him. Legatee/Beneficiary is the person who inherits the property under a Will. Probate is the copy of Will, duly certified under the seal of court and Testator is the person making/executing the Will.

A testamentary document, often referred to as a testament, is a legal document crafted by an individual to dictate the distribution of their property after their demise. It's noteworthy that there are no set guidelines for the format or language of a Will. There is no requirement for stamp duty, and a will can be composed on regular paper, allowing the testator the freedom to choose their preferred format and materials. The simple requirement being that it should be signed and attested by two witnesses. There is no requirement of registration of Will, even if it relates to immovable property. However, the registration of document simply makes it more authentic in its genuineness.

A Codicil, in contrast to a Will, serves as an amendment or addition to the primary document, which is the Will itself. Essentially, a Codicil is an instrument associated with a Will, used to clarify, modify, or introduce changes to its provisions. It is legally regarded as an integral component of the original Will and can be employed to rectify any error present in the Will. A Codicil acts as a supplementary document and is considered an annexure to a previously established Will.

Probate and Letters of Administration
Probate signifies a certified copy of the Will, authenticated by the seal of a competent court. This document serves as the formal proof of the executor's authority to execute the provisions of the Will. It's important to note that no court can grant probate within seven days of the testator's demise. Once probate is granted, legal action cannot be pursued to declare the testator as mentally unsound.

Letters of Administration can be granted to any person who is entitled to the whole or any part of the estate of deceased person. Court cannot grant letters of administration to a minor, a person of unsound mind or to association of individuals. Letters of administration cannot be granted till the expiration of 14 days from testator's death.

Role of Witnesses in making of Will
A witness plays a crucial role in the making of a will in India. The witnesses are required to affix their signatures to the will while in the presence of both the testator and each other. Their role includes attesting that the testator signed the Will in their presence. Furthermore, it is the responsibility of the witnesses to confirm that, at the time of creating the Will, the testator was in a sound state of mind and comprehended the implications and significance of the document.

Can a person execute two Wills?
According to Indian laws governing Wills, an individual is allowed to create two separate Wills. However, the second Will must be crafted with the explicit intent of nullifying the first Will, and it should adhere to the formalities stipulated in the Indian Succession Act. In the event that both Wills are found to be valid, the most recent one supersedes and revokes the previous will.

The benefit of executing two Wills lies in the ability to establish distinct provisions for different assets or beneficiaries. For instance, one will can be designated for movable assets, while another can be dedicated to immovable properties. Nevertheless, it's important to acknowledge that creating two Wlls may also introduce potential confusion and disagreements among the beneficiaries.

Mohammedan Law of Will
Mohammedan Law of Wills is at variance with the English Law, on which the Indian Succession Act has been based. The Indian Succession Act, 1925 does not apply to Mohammedans (Muslims), excepting the provisions relating to probate and letters of administration etc. A Muslim can make an oral Will and no writing is required under Mohammedan Law. The legatee is required to prove beyond doubt the intention to make a Will by the testator and the terms of the Will and to further prove the same with utmost precision.

If the Will is in a written form, the writing need not to be described as a Will, but the intention should be decisive and it need not be formally signed by the testator, and further it is not required to be attested or registered. However, a Will, in order to be valid, must have been made with free consent.

Mohammedan Law limits the power of bequests to 1/3 of the net assets. The 2/3 must, in any case be distributed according to the rules of intestacy. The Will is prominently referred to as Wasiyyat in Mohammedan Law. In simple words, a Muslim male cannot will away more than 1/3rd of his estate, i.e., 2/3rd of the property must be divided among the family members in the shares, as laid down in the Shariat Act, 1937.

Mohammedan Law gives the male heirs, the sons, twice the share of daughters. There is a provision that heirs of a Muslim testator may consent to bequest in excess to 1/3rd of testator's assets. A Muslim is fully competent to change his Will during his life time or cancel any legacy. A Will made by a Muslim testator may be treated as void, if a testator after making a Will, turns out to be of unsound mind and continues to be so till his death.

Guidelines to prove a Will
The Supreme Court has established a set of principles for substantiating a Will in a court of law, particularly when there are elements of doubt surrounding its validity. Familiarizing yourself with these principles can provide you with a clearer grasp of the legal procedures involved and bolster the chances of your Will being validated in a court of law.
  1. Burden of Proof: The burden of proving the will lies with the person who asserts its validity. They must prove that the testator was of sound mind while making the will and that it was made without any coercion or undue influence.
  2. Suspicious Circumstances: When there are any doubtful factors related to the formation of the will, such as concerns about the testator's mental capacity, external influence, or irregularities in how the will was executed, the court will conduct a thorough examination.
  3. Evidence: In order to establish the validity of a will, the evidence presented must be transparent, coherent, and persuasive. The evidence must also support the authenticity of the Will and the testator's intention to create it.
  4. Expert Opinion: In cases where the testator's mental capacity is in question, expert opinion from a medical practitioner may be required to prove their soundness of mind.
  5. Probate: Probate is a legal process to establish the validity of a will. It involves submitting the Will to the court, which then verifies its authenticity and approves its execution.
  6. Appeals: If a Will is contested and a decision is made, either party may appeal the decision. The process of pursuing appeals can consume a significant amount of time and financial resources.

Court Rulings on Will
The Hon'ble Supreme Court has consistently emphasised on the importance of registration of a document. Although, Section 18 (e) of the Indian Registration Act states that registration of a Will is optional, but registration makes it more authentic. Gaudiya Mission v. Shobha Bose & Anr (2008) 3 MLJ 506 (SC)

The Apex Court dealt with section 47 of the Registration Act to the effect that title passes retrospectively with effect from the date of execution and not from the date of registration. The guiding principles in the aforesaid judgment are that intention of the testator is most important factor for the courts to appreciate and act accordingly. Ittianam & Others v. Cherichi @ Padminin, JT 2010 )7) SC 590

If two constructions are reasonably possible and one of them avoids intestacy while the other suggests it, the Court would certainly be justified in preferring that construction which avoids intestacy. N. Kasturi v. D. Ponnammal and others, reported in AIR 1961 SC 1302

A Will becomes effective solely upon the demise of the testator. AIR 1964 SC 136

The courts are meant to do justice by keeping complete focus on the principles of equity without ignoring the issue of clarity in the document (Will). What is most important for the courts is to follow the guidelines laid down by the supreme court relating to the intention of the testator reflecting from the document (Will). Dilip D. Chowdhari & Anr v. Maharashtra Executor & Trustee & Ors. 2010 AIR (SCW) 3118

A mere fact that Will has been executed by the testator is not enough, but specific procedure has to be followed for proving it, particularly when the document is challenged on the ground of suspicious circumstances linked with its execution. It is always the person seeking relief from the probating court, who has to prove the execution and the genuineness of the Will. S. R. Srinivas & Ors v. S. Padmavathamma, JT 2010 (4) SC 296

The requirement of the proof is only where the document is disputed or challenged. The law treats registered document (Will) with a presumption of genuine, until proven otherwise. Balathandayutham and Another v. Ezhilarasan, 2010 AIR (SCW) 3131

It is important to comply with the standards mentioned in the Indian Succession Act to make the Will as valid. The importance of the registration of document (Will) is also highlighted in this judgment to prove its genuineness. The importance of attestation of document by the witnesses has been highlighted. The courts are always inclined to accept the document as genuine, if it is registered and is not surrounded by any suspicious circumstance. Mere execution of a Will does not make it valid, unless the provisions of Indian Succession Act are duly applied and complied with. Gopal Swaroop v. Krishna Murari Mangal & Ors, 2010 (12) scale P. 470 = 2010STPL (Web) 995 SC

The Will can be given effect to by a court of law, if the original document or a certified copy of the same is placed before the court for consideration. It is again important to prove that there was no fraud or undue influence exercised on the executant of the Will and also that the document (Will) was executed out of free will. N. Srihari (Dead) Through LRS & Ors v. N. Prakash & Ors, J.T.2010(12) S.C.25 = 2010(11) SC Scale 545

In the case of Kathrikutty & Others v. V.J. Pappoo & Others, Case No. MFA. 1054 of 1994, the Kerala High Court ruled that:
  1. When there is a provision bequeathing certain property of the testator for charitable purpose, necessarily that is a matter for the executor to execute.
  2. Whether one bequeath is good or bad is not within the purview of the probate court.
  3. The probate court has to rule out the possibility of suspicious circumstances before granting the probate.
  4. Will cannot be cancelled, but can only be revoked by writing another Will or by executing a Codicil in terms of Section 70 of the Indian Succession Act.

If there is a proper compliance of the needful sections of the relevant provisions of law, there can be no hurdle in probating the Will by the court. Shri Arun Rathi & Others v. N.C.T. of Delhi, 21.01.2011 + Test Cas. 57/1998

When a Will is contested due to suspicions surrounding its creation, it is essential to eliminate these doubts with compelling, satisfactory, and ample evidence in order to alleviate suspicion. The responsibility to establish the authenticity of the Will can be considered fulfilled upon demonstrating the key details it contains. The Hon'ble Apex Court further observed that as an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order. Bharpur Singh & Ors v. Shansher Singh, Civil Appeal No. 7250 of 2008

Article 137 of Limitation Act, 1963 has perfect application and time allowed for seeking the probate is Three years and limitation will run from the date when the right to apply accrues. The position of law is clear that Petition/Application for probating the Will must be done without unfair delay and greater the delay, greater would be the suspicion. Kunvarjeet Singh Khandpur v. Kirandeep Kaur & Ors, Appeal (civil) 2464 of 2008

If suspicious circumstances are ruled out or disproved, the courts must concentrate on the basic principles and the functions of a probate court are to see that the Will has actually been executed by the testator in a sound disposing state of mind without any coercion or undue influence and also that the Will has been attested by the witnesses. If the Will is proved to have been executed within the framework of the provisions of the Indian Succession Act and the Indian Evidence Act, then the probate Court must allow the petition and grant the relief prayed for. Kanwarjit Singh Dhillon v. Hardayal Singh Dhillon and Ors, (1993) 105 PLR.P 414

Where the right of either an executor or a legatee under a Will is an issue, such right can be established only when probate or letters of administration have been granted by a competent court. Binapani Kar Chowdhury v. Sri Satyabrata Basu and Anr, Civil Appeal No. 5784 of 2002

It is for the propounder to prove that Will has been validly executed and is a genuine document. The proof of the Will is required not as a ground of reading the document, but to afford the judge reasonable assurance of it as being what it purports to be. The Supreme Court held that a resolute and impenetrable incredulity is demanded from the judge, even if there exist circumstances of grave suspicion.

It was further held that the court granting Letters of Administration with a copy of the Will annexed, or probate must satisfy itself not about the genuineness of the Will but also satisfy itself that it is not fraught with any suspicious circumstances. In case of loss of original Will, it was obligatory on the part of first respondent to establish the loss of original Will, beyond all reasonable doubts. Benga Behera & Another v. Braja Kishore Nanda & Othrs, Writ Petition (civil) 3467 of 2003

The grant of a probate being a judgment in rem, a person, who is aggrieved thereby and having had no knowledge about the proceedings, and proper citations having not been made, is entitled to file an application for evocation of probate on such grounds as may be available to him. It was also held that it is a wrong view that agnates of the deceased are not heirs.

The probate court unmistakably operates within a defined jurisdiction and doesn't delve into matters of ownership. However, if the probate has been granted based on adherence to the provisions of the Act, the possibility of filing an application for revocation also exists. The probate court alone has exclusive jurisdiction and the Civil Court on original side or the Arbitration does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the applicant.

The probate grant represents a definitive decision, open to appeal or potential revocation in accordance with the provisions of the Succession Act. It holds the status of a judgment in rem, thereby being conclusive and binding not solely upon the involved parties but also upon the entirety of the world.

The executrix nominated expressly in the Will is a legal representative entitled to represent the estate of the deceased, but the heirs cannot get any probate before the Probate Court. The heirs are entitled only to resist the claim of the executrix of the execution and genuineness of the Will. Basanti Devi v. Raviprakash Ramprasad Jaiswal, Appeal (civil) 4896 of 2007

Civil Court is competent and rather under a legal binding to decide the issues related to the competence and intentions of the Testator in the execution of a Will. The Probate Court being not concerned with the controversial issues of the nature of the property being self-acquired, ancestral or H.U.F. and has limited role to ensure the execution of a genuine document (Will). While granting a probate, it is the duty of Civil Court to entertain such allegations, and decide the matter on evidence. Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon & Others, Appeal (civil) 4890 of 2007

The supreme court held that Will can be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executants, only in the event where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search.

It also held that a deposition of the Plaintiff is a witness before the court and not the statement through a counsel (Advocate) across the Bar and such a statement across the Bar cannot be a substitute for evidence warranting invocation of Section 69 of the Indian Evidence Act. Babu Singh & Others v. Ram Sahai @ Ram Singh, Appeal (civil) 3124 of 2008

In today's world, making a Will is very important. It helps prevent future family disputes and assists with estate planning, but there are specific legal steps to follow. When creating a Will, it's crucial to include all the required elements for it to be legally valid. A Will ensures that your assets are distributed according to your wishes after you pass away.

It is necessary for the petitioner seeking the relief of probate from the court to prove the genuineness of the Will and absence of fraud and undue influence on the executant. Registration of a document, though not mandatory, makes it easy to prove its genuineness.

  3. Making a Will made easy, V K Verma
  5. Advance Legal Drafting, Abhinav Gaur, Prakash Pandey, Shabdita Singh
Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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