Privileged Will and Unprivileged Will

These are frequently asked questions about the will under the Indian Succession Act, 1925, privileged will, unprivileged will, revocation of will, etc.

Type 1 (2 Marks)

1) What is Testamentary Succession under the Indian Succession Act, 1925?

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.

2) Who is testate under the Indian Succession Act, 1925?

Testate is a person who dies and leaves a valid will.

3) Who is an Executor under the Indian Succession Act, 1925?

The term executor is defined in S. 2(c) of the Indian Succession Act, 1925, as a person to whom the execution of last will of a deceased is confided by the testator.

4) What are the duties of executor?

Under S. 316 of the Act, it is the duty of an executor to provide funds for the performance of the necessary funeral ceremonies of the deceased in a manner suitable to his condition and status if he has left property sufficient for the purpose.
It is the duty of the executor to get probate granted from the Court. Expenses incurred in obtaining probate and costs incurred for initiating any judicial proceeding needed to administer the estate shall be paid after the expenses for funeral and death-bed charges are paid.
Under Ss. 317 and 318of the Act, an executor within six months from the grant of probate must make an inventory containing a full and true estimate of all the property in his possession and all the debts and credits due to him in his capacity as an executor.
It is then the duty of the executor to collect all the debts owing to the deceased, pay off all the legal liabilities payable by the deceased, and thereafter administer the estate (i.e. property) of the deceased according to the wishes of the testator as reflected in his will.
Under S. 319 of the Act, the executor shall collect, with reasonable diligence, the property of the deceased and the debts that were due to him at the time of his death.
Under Ss. 320 – 330 of the Act, the executor should make all disbursements to the beneficiary of wills after paying all the expenses, debts as prescribed in these sections and as sequence given in the Act.

5) What is Intestate Succession under the Indian Succession Act, 1925?

Intestate succession is when the deceased person does not leave a will. The Personal Laws of community to the deceased belong are applied.

6) Who is intestate under the Indian Succession Act, 1925?

Intestate is a person who dies and doesn’t leave a will.

7) Who is Administrator under the Indian Succession Act, 1925?

The term administrator is defined in S. 2(a) of the Act as a person appointed by a competent authority to administer the estate (property) of the deceased person when there is no executor.

8) Give the two duties of Administrator.

Under S. 316 of the Act, it is the duty of an administrator to provide funds for the performance of the necessary funeral ceremonies of the deceased in a manner suitable to his condition and status if he has left property sufficient for the purpose.
It is the duty of the administrator to get probate granted from the Court. Expenses incurred in obtaining probate and costs incurred for initiating any judicial proceeding needed to administer the estate shall be paid after the expenses for funeral and death-bed charges are paid.
Under Ss. 317 and 318 of the Act, an administrator within six months from obtaining the letter of administration must make an inventory containing a full and true estimate of all the property in his possession and all the debts and credits due to him in his capacity as an administrator.
It is then the duty of the administrator to collect all the debts owing to the deceased, pay off all the legal liabilities payable by the deceased, and thereafter administer the estate (i.e. property) of the deceased according to the direction of the court.
Under S. 319 of the Act, the administrator shall collect, with reasonable diligence, the property of the deceased and the debts that were due to him at the time of his death.
Under Ss. 320 – 330 of the Act, the administration should make all disbursements to the beneficiary of wills after paying all the expenses, debts as prescribed in these sections and as sequence given in the Act.

9) Define Will

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.

10) Define Supplementary Will / Codicil.

A Codicil is an instrument which explains, alters or adds to the disposition of a will and it is deemed to form part of the will. In short, it is a supplement to the will.

11) Can a person give away his entire property by will under the Indian Succession Act, 1925?

Under the Indian Succession Act, 1925, a person can generally dispose of their property by will as they see fit, subject to certain limitations and conditions.

12) Who can make oral will under the Indian Succession Act, 1925?

Under the Indian Succession Act, 1925, an oral will, also known as a nuncupative will, can be made only in specific circumstances and is subject to certain limitations. Oral will can only be made by a soldier who is in actual military service, or a mariner or seaman who is at sea.

13) State kinds of will under the Indian Succession Act, 1925.

Different types of will are privileged will, un-privileged will, codicil, conditional will, joint will, mutual will, reciprocal will, duplicate will

14) What is Privileged Will?

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.

15) Define Holographic Will

16) What is patent ambiguity under the Indian Succession Act, 1925?

In the context of the Indian Succession Act, 1925, “patent ambiguity” refers to a type of ambiguity that is evident or obvious on the face of the will itself, without the need for extrinsic evidence or interpretation. It means that there is a clear and apparent uncertainty or contradiction within the language or provisions of the will.

Type 2: Short Notes (6 Marks)

1) Will:

Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance of a person, are transmitted through his death to another or others either by his will or by operation of law. A will is a document which contains the last wishes of a person as regards the manner and mode of disposition of his property. 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.

Characteristics of Will:

A Will is a legal document;
It is related to Property of testator;
Intentions in a Will manifest after the death of testator;
A Will can be revoked by a testator in his life time;
A Will is a unilateral and personal act; and
To make a Will is a statutory right

Who can make a will?

All persons of sound mind, not being minor and who are not expressly prohibited by law may make a will. It shall be sufficient if the testator was able at the time of making the will to know the:

Nature of the estate to be disposed of;
Proper objects of his bounty; and
Character of the testamentary act.

Testamentary Succession and Wills. Wills are governed by the provisions of the Indian Succession Act, 1925. Some of the provisions of the Act do not apply to wills made by Hindus, Sikhs, Jains and Buddhists. However, the Act does not apply to wills made by Muslims as they are governed by their respective Shariat Laws.

2) Void Will under the Indian Succession Act, 1925:

A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. It is a legal declaration, unilateral and strictly personal act. It must be a declaration of an intention to dispose of his property after his death.

According to Section 59 of the Act, every person of sound mind not being a minor may dispose of his property by will. Thus will executed by minor or made in state of unsound mind are void.

According to Section 17 of the Indian Contract Act, a ‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract

According to Section 61 of the Indian Succession act, 1925, a will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.

Under S. 66(h) of the Act, If, after making a privileged will by word of mouth (oral), the testator lives for more than one month, after the testator has ceased to be entitled to make a privileged will, such oral privileged will becomes void.

Under Section 89 of the Act, a will or bequest not expressive of any definite intention is void for uncertainty.

As a will is one of the most solemn of all legal documents, thereunder a dead person entrusts the carrying out of his wishes to the living, it becomes absolutely imperative that such a document should have been the result of his free volition.

3) Oral Will under the Indian Succession Act, 1925 OR Privileged Will under 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.

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.

Section 66 of the Act, lays down provisions for the mode of making, and rules for executing, privileged Wills. Following rules are observed during execution of privileged will:

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

4) Probate under the Indian Succession Act, 1925:

A will is the expression by a person of wishes which he intends to take effect only at his death. According to Section 2(f) of the Indian succession act, 1925, probate means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator.

When a probate is applied for, and the will is proved, the original copy is retained by the court, which provides the executor with a certificate proving that it is genuine (the probate) and a copy of the will. This grant and the copy of the will both together form the probate However, a mere copy of the grant, without a copy of the will annexed, is not a probate.

In Balan Alias Balendu Jayant Sawant v. I.K. Agencies Pvt. Ltd., 19 March, 2010 case, the Bombay High Court observed that according to the law of testamentary succession, no matter what property is being bequeathed in a will, it does not have to be determined who owns it. This court’s only job is to determine if the deceased was of sound mind and capable of making a will and to ensure that the will is in line with the law. It only matters whether or not a person’s will is their final testamentary instrument, whether or not they were in a sound state of mind when they created it, and whether or not the will was properly executed and witnessed as required by law.

According to section 223of the Indian Succession Act, 1925, Probate cannot be granted to any person who is a minor or is of unsound mind. Neither it can be granted to an association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made by notification in the Official Gazette by the State Government in this behalf.

Probate of a Will when granted, establishes the genuineness of Will from the death of the testator and renders valid all intermediate acts of the Executor as such. There is no limitation for grant of letters of administration or probate. Where the estate is in the possession of administrator there is no question of the Probate Court delivering the possession to him but the probate will be decisive only with regard to the genuineness of the Will propounded and the right of the executor to represent the estate. If the Will which is required to be probated, under the Act, if not probated, has no legal sanctity and binding force.

Type IV: Essay Type Answers (13 Marks)

1) What is Will? What are its characteristics?

Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance of a person, are transmitted through his death to another or others either by his will or by operation of law. 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.

Definition of Will:

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.

All persons of sound mind, not being minor and who are not expressly prohibited by law may make a will. It shall be sufficient if the testator was able at the time of making the will to know the:

Nature of the estate to be disposed of;
Proper objects of his bounty; and
Character of the testamentary act.

Advantages of Making a Will (Testamentary Succession):

A standard distribution under the law of intestacy is avoided. Property is devolved on the basis of distribution given by deceased in his Will by the testator. The testator decides on who will get what and how much of it.
It informs the individuals who will be receiving assets of testator. Thus, family disputes for property can be avoided. Thus it results in Less stress and disputes for the beneficiaries
All assets of testator are revealed
Testator can choose and appoint an executor(s) he trusts
The process of devolution of property becomes simpler.
Through will guardians of minors can be appointed.
It reduces legal hassles.

Characteristics of Will:

A Will is a legal document:

The document purporting to be a Will must be legal, i.e., in conformity with the provisions as regards execution and attestation, as laid down in section 63 of the Indian Succession Act, 1925 and must be made by a person competent to make it. A minor is legally incompetent to make a Will, and a Will by a minor is not a legal declaration. It may also be noted that the mere use of the word “Will” cannot make it a Will, if it does not amount to a testamentary declaration disposing of the property. A Will is executed in accordance with formalities prescribed by law.

It is related to Property of testator:

The declaration should relate to the property of the testator which he wants to dispose of after his death. If the declaration contains no reference to the disposal of the property, but merely appoints a manager to manage the property, or gives merely an authority to his widow to adopt it is not a will.

Intentions in a Will manifest after the death of testator:

It must be a declaration of an intention to dispose of his property after his death. 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. For example: 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.

A Will can be revoked:

A will always operates from the date of the testator’s death, and not from the date of its execution. During the testator’s life, his will is always ambulatory i e, of an unsettled and fluctuating character, inasmuch as it can be revoked by the testator at any time. Thus, the will can be revoked at any time by the testator in his lifetime. The very nature of a will is such that it the person making it can change it as often as he likes. According to s 62 of the Act, a will is liable to be revoked or altered by its maker at any time when he is competent to dispose of his property by making a will.

A Will is a unilateral act:

No acceptance by the transferees is needed during the lifetime of the testator.

A Will is strictly personal act:

The disposition of property is solely dependent upon the testator. Thus, in the making of a will, preparation thereof cannot be wholly or partially entrusted to a third person or made through an agent or lawyer. It refers to the disposition of property. This is so because the essence of making a will is the disposition of property, hence, it cannot be delegated to another. Making of a will cannot be delegated. It is not only the delegation which is void but the disposition itself is void.

To make a Will is a statutory right:

The making of a will is only a statutory not a natural right. Hence, a will should be subordinated to both the law and public policy.

Test for a Will:

The following are the two tests for determining whether a document is a will or not :

That it was the intention of the writer to convey the benefits by the instrument which would be conveyed by it, if considered as a will, Le., the writer had the necessary intention or animus testandi. A will, though formally executed as such, will not be valid, if there is no animus testandi, e.g., if it was written in jest.
That death was the event that was to give effect to it. If the writing confers, or is intented to confer, benefits inter vivos (i.e., during the life-time of the person), without any reference to the death of the party conferring it, such a document cannot be called a will.

Conclusion:

2) Explain various kinds of Wills under the Indian Succession Act, 1925.

Privileged Wills:

According to 66 of the Indian Succession Act, 1925 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.

Unprivileged Wills:

Wills created by a testator not being a soldier, an airman and a mariner at sea employed in an expedition or engaged in actual warfare are known as Unprivileged Wills. Unprivileged Wills are governed under section 63 of the Act. The person creating the unprivileged 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. 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 testator.

Contingent or Conditional Wills:

Execution of contingent wills are dependent on happening of an event and if that event occurs in the future only then the will is to become effective. Thus, a will may be made contingent upon the happening of an event, so that if the event does not happen, the will has no effect. To determine whether a will is a contingent will, one must look at whether the happening of the contingency is condition precedent for the will to operate or whether the language of the contingency was made to induce the drafting and execution of the will. The testator must affirmatively intend that the will does not take effect unless the specified event occurs. While the courts should not impose intentions not found in the language of the will, some courts take into account poor or unskilled drafting by the testator.

Joint Wills:

A joint will is defined as a will made by two (or more) testators, contained in a single document, duly executed by each testator and disposing of either their separate properties or their joint property. The most common example of such a will is one made by a husband and his wife, disposing of their properly under one joint will. If a Joint Will intends to take effect after the death of both persons, then it would not be enforceable during the life-time of either. In Wills till 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 Wills:

Mutual wills, sometimes also called reciprocal wills. These types of wills have contractual element in them. In a Mutual Will, the testators confer upon each other reciprocal benefits. A husband and wife will execute a mutual will to pass on all benefits to the other person during their lifetime. Thus, mutual wills are the kind of wills in which two people agree to formulate a will on the mutually agreed terms and conditions. The terms and conditions of the will remain binding on the surviving partner after the death of first partner. Normally, a will is revoked by the marriage of its maker, but in case of mutual wills, the marriage of one of them does not revoke the will of the other.

Duplicate Wills:

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. 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. However, if the testator destroys the Will in his/her custody, then the other Will is also considered revoked.

Holograph Wills:

A holographic will is a handwritten document. It is verified and signed by the testator. It is one entirely written, dated, and signed by the hand of the testator himself. It is in a language or dialect known to him. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. Full signature refers to the testator’s habitual, usual and customary signature. Where the alteration affects the date of the will or the signature of the testator.

Concurrent Wills:

Normally a testator prepares a single will for his/her testamentary declarations. The testator according to his wish or for the sake of convenience can make different wills for the property located in different geographical locations. 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. It makes distribution of property easy.

Sham Wills:

Sham wills are created for an ulterior motive which is not the testamentary operation and execution of the will. 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 considered invalid.

Nuncupative or Oral Will:

An oral (or nuncupative) will is one which has been declared by the person making it in the presence of witnesses. The Act does not provide for the making of such wills, except in the case of soldiers, sailors and airmen (privileged wills). The burden of proof of establishing an oral will is naturally quite heavy, and such a person would have to prove the exact words of the testator.

Inofficious Will:

An inofficious will is a will which is not in keeping with the testator’s natural affection and moral duty, as where a testator bequeaths all his property to a stranger, to the complete exclusion of his wife (or her husband), his children and other relatives. Such a will is a perfectly legal will, provided all the other requirements of a will are fulfilled.

Conclusion:

3) Explain the Construction and Interpretation of Will.

Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance of a person, are transmitted through his death to another or others either by his will or by operation of law. 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.

Definition of Will:

Characteristics of Will:

A Will is a legal document
It is related to Property of testator
Intentions in a Will manifest after the death of testator
A Will can be revoked
A Will is a unilateral act
A Will is strictly personal act
To make a Will is a statutory right

Test for a Will:

The following are the two tests for determining whether a document is a will or not:

That it was the intention of the writer to convey the benefits by the instrument which would be conveyed by it, if considered as a will, i.e., the writer had the necessary intention or animus testandi. A will, though formally executed as such, will not be valid, if there is no animus testandi, e.g., if it was written in jest.
That death was the event that was to give effect to it. If the writing confers, or is intended to confer, benefits inter vivos (i.e., during the life-time of the person), without any reference to the death of the party conferring it, such a document cannot be called a will.

Need of Making a Will (Testamentary Succession):

Some of the reasons why a person should make a will (Testamentary Succession) are as follows:

He has complete discretion on how he wants to deal with his property. He can give assets to those persons whom he wants to and avoid others. If a person does not make a Will then the property of the deceased would pass by the relevant succession law and in this case there would be no control over who gets what.
Several succession disputes regarding the business arise after the head of the family dies intestate. If a valid will is in place, it would reduce all such unpleasant disputes.
In case a person wants to reward a friend, an old servant, an employee, etc., he can do so. If he does not make a will, then there is no way in which this would be possible after his death.
Making a will is something which most people keep deferring on some pretext or the other. It is advisable to make a will at an early age because of the uncertainty of life. There is no limit on the number of times a will can be revised.

Who can make a will?

All persons of sound mind, not being minor and who are not expressly prohibited by law may make a will. It shall be sufficient if the testator was able at the time of making the will to know the:

Nature of the estate to be disposed of;
Proper objects of his bounty; and
Character of the testamentary act.

Terminology of Testamentary Succession:

Testator: A person who makes the will. He is the person whose property is to be disposed of after his death in accordance with the directions specified under the will.
Beneficiary: Beneficiary is the person to whom the property of the testator would be bequeathed under the will.
Executor/Executrix: The persons who would administer the estate of the testator after his death in accordance with the provisions of the will. The Executor is normally named in the Will itself. If he fails to accept the responsibility, then the Court may appoint some person as the Executor.
Witnesses: The persons who witness the signing of the will by the testator are called witnesses.
Codicil: A Codicil is an instrument which explains, alters or adds to the disposition of a will and it is deemed to form part of the will. In short, it is a supplement to the will.

Form of a will:

There is no prescribed form of a will. To be effective, it need only be properly signed and attested as required by the Indian Succession Act. If the necessary animus testandi (intention to dispose of the property after the death of testator) is present, even agreements, letters, bills of exchange and powers of attorney may operate and take effect as wills, provided that under such animus testandi, the dispositions are not to take effect until after the person’s death.

Language and writing of a will:

Will should be in simple, clear, unambiguous language. No technical words need be used in a will, and a will can be in any language. It should reflect the mind of the testator with sufficient clarity. It can be typed or printed or hand written. If handwritten, then preferably it must be written with an ink.

Signing the Will:

The testator must sign the will in the presence of at least two witnesses. The witnesses must also sign the will in the presence of the testator. The witnesses should be competent and not beneficiaries under the will.

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.

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.

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.

Stamp duty:

No stamp duty is payable on wilts and codicils. Hence, wills and codicils need not be written on stamped paper.

Registration (Optional):

Although not mandatory, registering the will with the local registrar can provide additional legal validity and help prevent disputes over the authenticity of the will in the future.

Safekeeping:

After the will is executed, it should be kept in a safe place, such as a bank locker or with a trusted individual. The executor or a trusted person should know where the will is kept and how to access it after the testator’s death.

Probate:

Probate is the legal process of proving the validity of a will in the High Court. Obtaining a probate can provide a legal stamp of approval to the will and make the process of property transfer smoother. Probate jurisdiction varies depending on the location of the property.

Execution of the Will:

After the testator’s death, the executor (if one is named in the will) or the legal heirs will need to initiate the process of executing the will. This involves presenting the will to the relevant authorities, such as the court or the executor, and following the instructions laid out in the will for the distribution of property.

Distribution of Assets:

Once the will is validated, the executor or the legal heirs will distribute the assets according to the terms of the will. This may involve transferring ownership of properties, liquidating assets, and settling any debts or liabilities of the deceased.

Legal Challenges:

In some cases, there may be legal challenges to the validity of the will or disputes among the beneficiaries. These disputes may need to be resolved through legal proceedings in court.

Conclusion:

4) Discuss Revocation of Will

A will is a revocable instrument as distinguished from a deed. A will of a living man does not come into operation when it is executed but only upon his death. A will is in its nature ambulatory during the maker’s lifetime and is therefore always revocable so long as the testator is living. The only instance in which a will cannot be revoked is in the case of mutual or joint wills which become irrevocable after the death of one of the makers.

Revocation means the official cancellation a decision. According to Section 62 of the Act, a will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will. The testator’s right to revoke during his lifetime is absolute. It can neither be waived nor restricted.

Revocation of Unprivileged Will:

Revocation of unprivileged Will can be done by two methods: (a) by the operation of law as provided in S. 69 of the Act or (b) by acts of parties (i.e., by another will or codicil, or by some other writing, or by burning, tearing or otherwise destroying). The modes of revocation as prescribed in this section are exhaustive. A mere intention to revoke is no revocation of the will already made. For effective revocation, one of the requirements of this section must be compiled with.

Revocation by Operation of Law:

According to section 69 of the Indian Succession act, 1925, every will shall be revoked by the marriage of the maker, except a will made in exercise of a power of appointment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.

Section 69 of the Act lays down that if a maker, whether man or woman, of a will marries after making the will, the will is revoked. This is revocation by operation of law. The principle upon which a will is revoked by marriage is that marriage creates such a change in the testator’s condition with new obligations and duties, they raise an inference that the testator would not adhere to will made before the marriage. Every will, whether unprivileged or privileged, is revoked by marriage of the maker.

Here are five exceptions to this rule, as follows:

The rule does not apply to a Hindu, Buddhist, Sikh or Jain.
Similarly, under Mohammedan law, a will made by a Mohammedan is not revoked by his marriage.
When a will is made in the exercise of a power of appointment, the testator’s marriage does not revoke the will.
When two persons make a mutual will, the marriage of one of them does not revoke the will.
There is no revocation when the subsequent “marriage” is itself void.

Revocation by Act of Parties:

According to Section 70 of the Act, no unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is herein before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.

Modes of Revocation of Unprivileged Will:

By Another Will or Codicil:

It follows from the ambulatory nature of the will that the last testament shall be operative to the exclusion of previous contrary or inconsistent ones. The testator must have the testamentary capacity at the time of the making of the subsequent will. But the intention to revoke a former will must be clear e.g., when the later instrument contains words of express revocation. A general revocation clause revoking all former wills and codicils is usual in all well drafted wills. An invalid will cannot revoke the earlier valid will. The revoking will must be admitted to probate.

Revocation may be either express (by providing for a revocation clause) or implied. The will containing the revocation clause must itself be valid, and admitted to probate, otherwise, there is no revocation. Where the later instrument contains no words of express revocation but the dispositions made in the later instrument are of such a character as cannot stand with the first, it can be inferred that the testator intended to revoke the first.

In Nawab Sahib Mirza v. Mussammat Umda Khanam, 1892, L. R. 19 Ind. App. 87 case, the Court held that a will, duly executed, cannot be treated as revoked either wholly or partly by a will which is not forthcoming, unless it is proved that the two cannot stand together. It is not enough to show that the later will differ from the earlier, but it is necessary to show that the difference are irreconcilable.

In Campbell v French, 3 Ves. Jr. 321 (1797) case, a testator gave legacies to the grandchildren of his children and, afterwards by a codicil, revoke the legacies, giving as a reason, that the legatees were dead. It was proved that the legatees were not dead. It was held that the legacies were not revoked as the cause of revocation was false.

By Some Writing:

Revocation may be in writing declaring an intention to revoke, and executed in the manner in which an unprivileged will is required to be executed, i.e., the writing must be signed by the testator and attested by two witnesses.

By Burning or Tearing:

The physical destruction may be done by the testator personally or by another person acting in his presence and by his express direction. It is not necessary that the will be totally destroyed. It is sufficient if on the face of the will, there is shown some sign of the physical act of destruction. The will may be burnt or torn by the testator or by some person in his presence and by his direction, with the intention of revoking the same.

Otherwise Destroying:

The words ‘otherwise destroying’ denote modes of destruction ejusdem generis with those described as ‘burning’, ‘tearing’, etc. Cancellation of will is not one of the modes of revocation. The excision of the name of a testator from his will has been held to amount to ‘otherwise destroying’ the will.

In Brunt v. Brunt, (1873) 3 PandD 37 case, A, whilst delirious, tears up his will into pieces. The pieces are preserved, and on recovering, A is informed of what he had done. A says that he would make a fresh will. A, however, dies without making a fresh will. The Court held that A did not have the necessary animus revocandi when he tore up the will. Hence, the will is not revoked.

In Cheese v Lovejoy, LR 2 P 251 case, A, the testator, draws some lines across his will and writes on the back of it – “This is revoked”. The Court held that the will cannot be said to be revoked under these circumstances. Such a writing should have been signed by the testator and attested by two witnesses.

Revocation of Privileged Will:

According to Section 72 of the Act, a privileged will or codicil, may be revoked by the testator by an unprivileged will or codicil, or by any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged will, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.

Under Section 69, privileged will get revoked on the marriage of testator.

Conclusion:

According to Section 62 of the Act, a will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will. If a prior will is revoked by a subsequent will or codicil. the prior will has no operation whatever. The onus to prove that the will was revoked by the testator lies on the person alleging revocation. Section 69 of the Act lays down that if a maker, whether man or woman, of a will marries after making the will, the will is revoked. According to Section 70 of the Act, unprivileged will or codicil can be revoked by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is herein before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.

5) Explain the law relating to Execution and Revocation of Unprivileged Will.

Combine answers of Question 5 and 6.

6) Discuss Intestate Succession under the Indian Succession Act, 1925.

Intestate succession under the Indian Succession Act, 1925, deals with the distribution of the property of a deceased person who did not leave a valid will or left a will that does not dispose of all of their property. In such cases, the law prescribes a set of rules to determine how the deceased person’s estate will be distributed among their legal heirs.

If a person has not made a testamentary disposition of his property which is capable of taking effect, he is deemed to have died intestate in respect of his entire estate. Intestacy is either total or partial. There is a total intestacy where the deceased does not effectively dispose of any beneficial interest in any of his property by will. There is a partial intestacy where the deceased effectively dispossess of some, but not all, of the beneficial interest in his property by will.

In intestate succession the property of deceased is distributed by the laws of intestacy which are governed as following laws:

Faith	The Applicable Act
Hindus, Jains, Sikhs, Buddhists,	The Indian Succession Act, 1925
Muslims	The Personal Law Application Act, 1937
Christian, Jews, Parsis	The Indian Succession Act, 1925
Inter-faith	The Special Marriage Act, 1954

Intestate Succession among Person among Christians and Jews:

The Succession Act contemplates only those relations that arise from a lawful marriage. Where an intestate has left a widow and if he has left lineal descendants, i.e., Children and Children’s Children, 1/3rd of his property shall belong to the widow, and the remaining two third shall go to the lineal descendants. If the intestate has no lineal descendants, but has left persons who are of kindred to him, half of his property shall belong to the widow and the other half shall go to those who are of kindred to him.

As per Section 48, when the intestate has left neither lineal descendant, nor parent, nor sibling, his property shall be divided equally among those of his relatives who are in the nearest degree of kin to him. If there are no heirs, whatsoever to the estate, the Doctrine of Escheat can be invoked by the Government, where upon the estate of the deceased will revert to State.

Important Case Laws:

Mrs. Mary Roy etc. v. State of Kerala and others – 1986 SCR (1) 371.
Thankamma and another v. N. Kunjamma and others –AIR 1986 Kerala 134.
Anthappa (Deceased) by his LRs v. Distinappa alias Subbanna – AIR 2006 Kant 60.
Thomayar v. Mary – 2004 (1) KLT 863.
Mary and others v. Eliyamma and others – AIR 1974 Kerala 107.
E.V.George v. Annie Thomas and another – AIR 1991 Kerala 402.
Mathew Varghese v. Rosamma Varghese – AIR 2003 Kerala 312.

Intestate Succession among Parsis:

According to Section 50 of the Act, for the purpose of intestate succession among Parsis, there is no distinction between those who were actually born in the lifetime of a person deceased and those who at the date of his death were only conceived in the womb, but who have been subsequently born alive; a lineal descendant of an intestate who has died in the lifetime of the intestate without leaving a widow or widower or any lineal descendant or a widow or widower of any lineal descendant shall not be taken into account in determining the manner in which the property of which the intestate has died intestate shall be divided; and where a widow or widower of any relative of an intestate has married again in the lifetime of the intestate, such widow or widower shall not be entitled to receive any share of the property of which the intestate has died intestate, and such widow or widower shall be deemed not to be existing at the intestate’s death.

Division of a male intestate’s property among his widow, children and parents:

According to Section 51 of the Actthe property of which a male Parsi dies leaving a widow and children intestate shall be divided among the widow and children, so that the share of each son and of the widow shall be double the share of each daughter, or where he dies leaving children but no widow, among the children, so that the share of each son shall be double the share of each daughter. Where a male Parsi dies leaving one or both parents in addition to children or a widow and children, the property of which he dies intestate shall be divided so that the father shall receive a share equal to half the share of a son and the mother shall receive a share equal to half the share of a daughter.

Division of a female intestate’s property among her widower and children

ccording to Section 52 of the Act, 52. The property of which a female Parsi dies intestate shall be divided-

(a) where she dies leaving a widower and children among the widower and children so that the widower and each child receive equal shares, or

(b) where she dies leaving children but no widower, among the children in equal shares.

Division of share of predeceased child of intestate leaving lineal descendants

According to Section 53 of the Act, in all cases where a Parsi dies leaving any lineal descendant, if any child of such intestate has died in the lifetime of the intestate, the division of the share of the property of which the intestate has died intestate which such child would have taken if living at the intestate’s death shall be in accordance with the following rules, namely:-

(a) If such deceased child was a son, his widow and children shall take shares in accordance with the provisions of this Chapter as if he had died immediately after the intestate’s death:

Provided that where such deceased son has left a widow or a widow of a lineal descendant but no lineal descendant, the residue of his share after such distribution has been made shall be divided in accordance with the provisions of this chapter as property of which the intestate has died intestate, and in making the division of such residue the said deceased son of the intestate shall not be taken into account.

(b) If such deceased child was a daughter, her share shall be divided equally among her children.

(c) If any child of such deceased child has also died during the lifetime of the intestate, the share which he or she would have taken if living at the intestate’s death shall be divided in like manner in accordance with clause (a) or clause (b) as the case may be.

(d) Where a remoter lineal descendant of the intestate has died during the lifetime of the intestate, the provisions of clause (c) shall apply mutatis mutandis to the division of any share to which he or she would have been entitled if living at the intestate’s death by reason of the predeceased of all the intestate’s lineal descendants directly between him or her and the intestate.

Division of property where intestate leaves no lineal descendant but leaves a widow or widower or a widow of any lineal descendant:

According to Section 54 of the Act, where a Parsi dies without leaving any lineal descendant but leaving a widow or widower or a widow of a lineal descendant, the property of which the intestate dies intestate shall be divided in accordance with the following rules, namely:-

(a) If the intestate leaves a widow or widower but no widow of a lineal descendant, the widow or widower shall take half the said property.

(b) If the intestate leaves a widow or widower and also a widow of any lineal descendant, his widow or her widower shall receive one-third of the said property, and the widow of any lineal descendant shall receive another one-third, or if there is more than one such widow, the last mentioned one-third shall be divided equally among them.

(c) If the intestate leaves no widow or widower but one widow of a lineal descendant, she shall receive one-third of the said property or, if the intestate leaves no widow or widower but more than one widow of a lineal descendant, two-thirds of the said property shall be divided among such widows in equal shares.

(d) The residue after the division specified in clause (a), (b) or (c) has been made shall be distributed among the relatives of the intestate in the order specified the relatives of the intestate in the order specified in Part I of Schedule II. The next-of-kin standing first in Part I of that Schedule shall be preferred to those standing second, the second to the third, and so on in succession, provided that the property shall be so distributed that each male shall take double the share of each female standing in the same degree of propinquity.

(e) If there are no relatives entitled to the residue under clause (d), the whole of the residue shall be distributed in proportion to the shares specified among the persons entitled to receive shares under this section.

Division of property where intestate leaves neither lineal descendants nor a widow or widower nor a widow of any lineal descendant

According to Section 55 of the Act, when a Parsi dies leaving neither lineal descendants nor a widow or widower nor a widow of any lineal descendant, his or her next-of-kin, in the order set forth in Part II of Schedule II, shall be entitled to succeed to the whole of the property of which he or she dies intestate. The next-of-kin standing first in Part II of that Schedule shall be preferred to those standing second, the second to the third, and so on in succession, provided that the property shall be so distributed that each male shall take double the share of each female standing in the same degree of propinquity.

Division of property where there is no relative entitled to succeed under the other provisions of this Chapter

According to Section 56 of the Act, where there is no relative entitled to succeed under the other provisions of this Chapter to the property of which a Parsi has died intestate, the said property shall be divided equally among those of the intestate’s relatives who are in the nearest degree of kindred to him.

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The Indian Succession Act, 1925 Q & A (Privileged Will and Unprivileged Will)

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The Indian Succession Act, 1925 Q & A (Privileged Will and Unprivileged Will)

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