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. 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. All persons of sound mind, not being minor and who are not expressly prohibited by law may make a will. Different kinds of wills are as follows:
Privileged Wills:
Privileged Wills are Wills that may be in writing or made by word of mouth by those in active services like a soldier, airman or mariner. Indian Succession Act, 1925 provides certain privileges to a soldier, an airman and a mariner at sea employed in an expedition or engaged in actual warfare. These privileges are enacted keeping in mind the complicated predicament a soldier is in during the tenure of his service.
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. Section 66 of the Act, gives provisions of mode of making, and rules for executing, privileged wills. Provisions allowing word of mouth in presence of witnesses to be considered as valid will and written instructions to be considered as a valid will after the death of a soldier are some of the prime examples of such privileges.
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. The signature or mark of the testator or the signature of the person signing for the testator must be placed so that it appears that it was intended to give effect to the writing as Will. The two or more witnesses should attest to the will. The witnesses must have seen the testator sign or affix his mark to the Will or has seen some other people sign the Will, in the presence and by the direction of the 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.
A will contained the following clause, “Should anything happen to me during my passage to Wales or during my stay….”, it was held to be a conditional will Such a will takes effect only if the contingency happens; if the contingency does not happen, the will is not entitled to probate. Similarly, a will may be made conditional on the assent of a third person, and such a will would be entitled to a probate only if such assent has been given.
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.
In law, a will made by two persons is not considered to be a single will. In effect, it constitutes two wills, and on the death of each testator, it operates as a will of such a testator, disposing of his own separate property. Therefore, on the death of one testator, such a will can be admitted to probate as the will of such testator, and on the death of the survivor, it will be admitted to probate as the disposition of the property of the survivor. However, a joint will relating to joint property only can be proved only on the death of the survivor.
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. Example: A bequeaths all this property to B, and B makes a will giving all his property to A. Mutual Will helps to ensure that the property passes on to the children of the deceased and not a new spouse of the surviving partner in case they remarry.
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.
Due to the fact that the testator has written the will in his own hand–writing would also go to show that he was fully aware and conscious of making such a will. It is held in various judicial pronouncements that “If there is hardly any suspicious circumstances attached to the will, it will require “very little” evidence to prove due execution and attestation of such a will”. It is easy to prepare and involves less cost.
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.