A will is a document which contains the last wishes of a person as regards the manner and mode of disposition of his property. Many people defer preparing their will for a variety of reasons and ultimately it may be too late. In India, especially, the practice of preparing a will is not very prevalent unlike the western world. Testamentary succession occurs when a person dies and leaves a will. Their property will be distributed as they bequest in the will however legal rights will still have to be satisfied. According to section 2(h) of the Indian Succession act, 1925 A will is defined as the legal declaration of the intention of a testator with respect to his property, which (intention) he desires to be carried into effect after his death. The General Clauses Act, 1897, defines the term will to include “a codicil and every writing making a voluntary posthumous disposition of property”. The Indian Penal Code defines a will to denote any testamentary document. According to the Indian Succession Act, 1925, there are two types of wills: a) Privileged wills and b) Unprivileged wills.

Privileged Wills:

It is to be noted that Section 65of the Indian Evidence Act, 1925 has not been included in schedule III and in view of s.57 of the Act, the same is therefore not applicable to Hindus (including Sikhs, Buddhists, and Jains).

According to Section 65 of the Act, any soldier being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a will made in the manner provided in section 66. Such wills are called privileged wills.

Illustrations:

1. A, a medical officer attached to a regiment is actually employed in an expedition. He is a soldier actually employed in an expedition, and can make a privileged will.
2. A is at sea in a merchant-ship, of which he is the purser. He is a mariner, and, being at sea, can make a privileged will.
3. A, a soldier serving in the field against insurgents, is a soldier engaged in actual warfare, and as such can make a privileged will.
4. A, a mariner of a ship, in the course of a voyage, is temporarily on shore while he is lying in harbour. He is, for the purposes of this section, a mariner at sea, and can make a privileged will.
5. A, an admiral who commands a naval force, but who lives on shore, and only occasionally goes on board his ship, is not considered as at sea, and cannot make a privleged will.
6. A, a mariner serving on a military expedition, but not being at sea, is considered as a soldier, and can make a privileged will.

A soldier while in barracks and an airman on land would not be entitled to make privileged wills. The term mariner is a wide expression which includes all seamen from the captain to the cook, provided they are at sea.

In Re. Wingham, (1948) 2 ALL ER 908 (CA) case, the Court held that if a member of a military force is sent for training he was not in actual military service within the meaning of this expression. Actual military service is the equivalent of the latin term ‘in expenitone’. Not every soldier in times of war, even though literally on active service, is entitled to make a privileged will. It is only when he is employed in an expedition or engaged in actual warfare that the privileges can be availed of. The words actual warfare means ‘actual military service’ i.e, on an expedition.

In the Estate of Anderson, (1944) P 6 case, a soldier went to his Solicitor and instructed him to make a will However, before the will could be prepared, the soldier was shot dead The Court held that as the soldier was not engaged in actual warfare, he was, therefore, not entitled to make a privileged will.

Execution of Privileged Will:

Section 66 of the Act, lays down provisions for the mode of making, and rules for executing, privileged Wills. According to Section 66 of the Act,

(1) Privileged wills may be in writing, or may be made by word of mouth.

(2) The execution of privileged wills shall be governed by the following rules:

(a) The will may be written wholly by the testator, with his own hand. In such case it need not be signed or attested.

(b) It may be written wholly or in part by another person, and signed by the testator. In such case it need not be attested.

(c) If the instrument purporting to be a will is written wholly or in part by another person and is not signed by the testator, it shall be deemed to be his will, if it is shown that it was written by the testator’s directions or that he recognised it as his will.

(d) If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, be invalid, provided that his non-execution of it can be reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument.

(e) If the soldier, airman or mariner has written instructions for the preparation of his will, but has died before it could be prepared and executed, such instructions shall be considered to constitute his will.

(f) If the soldier, airman or mariner has, in the presence of two witnesses, given verbal instructions for the preparation of his will, and they have been reduced into writing in his lifetime, but he has died before the instrument could be prepared and executed, such instructions shall be considered to constitute his will, although they may not have been reduced into writing in his presence, nor read over to him.

(g) The soldier, airman or mariner may make a will by word of mouth by declaring his intentions before two witnesses present at the same time.

(h) A will made by word of mouth shall be null at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a privileged will.

Rule 1:

If the privileged will is wholly written by the testator, signature of the testator and attestation by witness is not necessary.

Rule 2:

If the privileged will is written by another person (wholly or in part), signature of the testator is necessary. It is not necessary if it is shown that (i) it was written under his direction, or (ii) he recognised it as his will. An attestation by witness is not necessary.

Rule 3:

If the soldier, airman, or mariner leaves written instructions to prepare his will but dies before the will is prepared and executed, such instructions shall constitute his will.

Rule 4:

If the soldier, airman or mariner gives verbal instructions to prepare his will in the presence of two witnesses and the instructions are reduced to writing in his life time but he dies before the will is prepared and executed, such instructions shall constitute his will, although the instructions may not have been reduced into writing in his presence nor read over to him.

Conclusion:

A privileged will is one that can be made by a member of the Armed Forces engaged in actual warfare or employed in a certain expedition. There are some legal formalities prescribed in the Indian succession Act, 1925 to be followed during execution of will. However, considering the associated possibility and dangers of sudden death and lack of time, owing to the nature of their line of duty, such formalities are somewhat relaxed for the armed forces. This is what separates a privileged will from other forms of wills such as an unprivileged will. A privileged will in India can be made by a person in “active military service”.