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. 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. The will which is not privileged is an unprivileged will. In this article, we shall study the execution of unprivileged wills.

Execution of Unprivileged Wills:

According to Section 63 of the Act, every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

According to Clause (a) the testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. Under the General clauses act, 10 of 1897, the word, ‘sign’ with reference to a person who is unable to write his name includes ‘mark’.

In Nirmal Chunder Bandopadhya v. Saratmoni Debya, (1898) ILR 25 Cal 911 case, a rubber stamp was held to be good. But the mark must be made by the testator and not by some other person for the testator. If the testator intentionally or unintentionally signs under a wrong or assumed name, still if he signs animus testandi, it is sufficient.

In Leela Karwal v. Col. JD Karwal, AIR 1986 All 220 case,a testator under his will bequeathed his house to his second wife. The testator died leaving two sons and daughters from his first wife. When the letter of administration was sought for by the second wife, the same was objected by the children of first wife. The will was in the handwriting of the deceased and it bore no date. It did not bear any signature. It only had in the beginning with a sentence, ‘ I Guru Datt Karwal s/o Shri Dv Chand Retd Professor’. A contention was made that the writing in the first page to be construed as his signature. It was held that the will is invalid not contemplating under S.63 (a) of the Indian Succession Act.

According to clause (b), the signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. The clause does not specifically mention the position at which the signature or the mark is to be put. Thus, the signature or mark of the testator or the signature of the person signing for him may be placed anywhere on the will, i.e., either at the commencement or at the end, but it must be so placed that it shall appear that it was intended to give effect to the instrument as a will.

In Kashi Nath Chatterjee vs Amarendra Nath Chatterjee, (1900) 27 TTJ Cal 169 case, the signature was at the beginning of the will, the Court held that the will was written by the testator himself; that the signature at the beginning of the will is in the testator’s handwriting, and it is in evidence that the testator told the witnesses that this was his will and the Court held the will to be good.

According to clause (c), The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

A mere signing on a will by another person does not always amount to attestation. Attesting means signing a document for the purpose of testifying to the signature of the person executing the document. It is not necessary that the attesting witness should know the contents of the will. The Act specifically provides that no particular form of attestation shall be necessary.   It is not necessary that the attesting witnesses should know the contents of the will. The testator need not disclose the nature or contents of the instrument. Similarly, it is not necessary that the attesting witness should see the testator signing the will. A personal acknowledgement may include words or conduct or both, on the part of the testator which may be construed unequivocally as an acknowledgement. It is not necessary that both the witnesses should be present at the same time.

Criteria of Attestation of Unprivileged Wills:

1. each witness must have seen the testator sign or affix his mark or
2. each witness must have seen some other person sign the will in the presence of and by the direction of the testator, or
3. if the will is already signed, each witness must have received from the testator a personal acknowledgement of his signature or mark or of the signature of such person signing for him.

In T. Venkat Sitaram Rao v. T. Kamakshiamma, AIR 1978 Ori 145 case, the Courtheld that although S. 68 of the Indian Evidence Act, 1872 provides that only one attesting witness, if alive and subject to the process of the Court and capable of giving evidence, is to be called to prove the execution of the document, it would be incumbent on a person claiming under a will to prove that the document was executed as required by S. 63. Proof of attestation of the document by one witness would not satisfy the statutory requirement of attestation of a will, and so long as it is not proved that the document was attested by two witnesses, it cannot have the legal sanctity of a will.

In Palani velayutham Pillai v Ramachandran, 9 May, 2000, the Apex Court observed thata person (scribe) who writes the will and reads and explain it to the testator and makes a note to that effect on the will and signs it cannot be deemed to be an attesting witness. A scribe may, however, perform a dual role, he may be an attesting witness as well as a scribe. When a person had put his signature on the document both as scriber and as attesting witness, the inference is that he functions both as scribe and attesting in them.

In Rambat v. Mst. Bhundkuwar, AIR 1978 NOC 268 MP case, the Madhya Pradesh High Court has held that the validity of a will or the provisions thereof as regards restrictions on the power of testamentary disposition is determined according to the law in force at the time of the testator’s death, and not the law in force when the will was executed.

Incorporation of Papers by Reference:

Incorporation by reference is the incorporation of an extrinsic document or paper into a will by reference so as to become a part thereof.  The documents or papers incorporated will be considered part of the will even though the same are not executed in the form of a will.

According to Section 64 of the Indian evidence Act, 1925 if a testator, in a will or codicil duly attested, refers to any other document then actually written as expressing any part of his intentions, such document shall be deemed to form a part of the will or codicil in which it is referred to.

Before a document can be incorporated, the following four conditions must be complied with:

1. The document must be of a testamentary nature
2. The document must be in existence at the date of the will or codicil in which it is referred to and describe d as existing. A paper not in existence at the date of the execution of the testamentary instrument cannot be incorporated in it or referred to for purposes of construction.
3. The document must be clearly identified with the description of it given in the will
4. The intention to incorporate must be clear.

Conclusion:

Unprivileged wills can be created by any individual other than those who are allowed to make a privileged will. The person creating the will must be of sound mind (should have “testamentary capacity”) and not a minor. As per section 63 of the Indian Succession Act, 1925, the creator (testator) of the unprivileged will must sign/affix his or her mark on the will. The signature /mark of the creator (or the signee on his behalf) must be placed in such a way so that it discloses clear intention of the creator to give effect to what is written in the will.  Two or more witnesses should attest to the will.