Testamentary Succession and Wills

Succession is the legal process by which the rights and obligations of a deceased person are transferred
to their heirs.

When we say that a person died intestate, it means that the individual passed away without having
executed a will. In such cases, the distribution of their properties and assets will be governed by the
personal law of succession and inheritance. The absence of a valid will leaves the determination of the
heirs and the allocation of the deceased person’s estate to the legal framework established by the
intestate succession laws.

On the other hand, testamentary succession, specifically, pertains to the succession of a person’s
property after their death in accordance with the provisions outlined in a legally executed will. A
person can ensure as to how his property should devolve and to whom it shall devolve, after his death,
through a Will. It occurs when the deceased individual has made explicit provisions for the distribution
of their estate through a valid will, expressing their wishes and instructions for the disposal of their
assets. Hence, it is preferable that one should make a Will to ensure that one's actual intension is
followed and the property is devolved accordingly. The importance and impact of a will can be seen
through the controversy that arose with regards to the will of Priyamwada Birla, widow of M.P.Birla,
which decided the fate of the Birla group of Industries.

The origin and growth of Will amongst the Hindus is unknown. However Wills were well known to the
Mohammedans and contact with them during the Mohammedan rule, and later on with the European
countries, was probably responsible for the practice of substituting informal written or oral
testamentary instruments with formal testamentary instruments. The Indian Succession Act of 1925 is
an act to consolidate the law applicable to intestate and testamentary succession. Part VI (Sections 57
to 191) of the ISA consists of 23 chapters, providing a comprehensive framework for the rules and
procedures governing testamentary succession. It is applicable to all the Wills and codicils of Hindus,
Buddhists, Sikhs and Jains as well as Christians and Parsis throughout India. The Indian Succession Act,
1925, does not govern Muhammadans and they can dispose their property according to Muslim Law.

Definition of Will, Codicil

 WILL-
A “will”, often referred to as a “will and testament”, is a legal instrument created in anticipation of
death. It is a solemn document by which a dead man entrusts to the living to the carrying out of
his wishes. The term “will” finds it’s roots in the Latin word “voluntas”, which was used in Roman
Law to express a testator’s intention.
According to Section 2(h) of the ISA, a Will means the legal declaration of the intention of a person
with respect to his property, which he desires to take effect after his death.
Section 57 of the Act- provides that the Act applies to-
a) Will and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after 1st September, 1870,
within the territory governed by the Lt. Governor of Bengal or within local limits of the High
Courts of Madras and Bombay;
b) Will and codicils that has been made outside those territories but relates to a property
situated in those territories;
c) will that has been made by Hindu, Buddhist, Sikh, or Jaina on or after 1/01/1927.
The same has been reiterated by the Supreme Court in the case of Kanta Yadav vs. Om Prakash
Yadav and Ors 2019.
 S.58 states that this part shall not apply to testamentary succession to the property of any
Muhammadan, nor shall it apply to any will made before the 1st January, 1866.
It also applies to Christians, Jews and Parsis.
 CODICIL-
According to Section 2(b) of the ISA- Codicil is an instrument made in relation to a Will, explaining,
altering or adding to its dispositions and is deemed to be a part of the Will.
The purpose of codicil is to make some small changes in the Will, which is already in existence. If
the testator wants to change the names of the executors by adding some other names, or wants
to change certain bequests by adding to the names of the legatees or subtracting some of them,
a Codicil in addition to the Will can be made to do so.
Executor: An executor is appointed by the testator, as distinguished from an administrator who is
appointed by the court. Where the Will confers the powers to collect the outstanding, pay debts
and manage the properties, the person can be said to be appointed as an executor by implication.
 EXECUTOR-
According to Section 2(c) of the ISA- “executor” means a person to whom the execution of the last
Will of a deceased person is, by the testator's appointment, confided. An executor is appointed by
the testator, as distinguished from an administrator who is appointed by the court. Where the Will
confers the powers to collect the outstanding, pay debts and manage the properties, the person
can be said to be appointed as an executor by implication.
 PROBATE-
According to Section 2(f) of the ISA- “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.
Probate is an evidence of the appointment of the executor and unless revoked, is conclusive as to
the power of the executor. The grant of probate to the executor however does not confer upon
him any title to the property.
 LETTER OF ADMINISTRATION-
Letter of Administration is a certificate granted by the competent court to an administrator where
there exists a Will which has not nominated an executor. The administrator is authorized to
administer the estate of the deceased in accordance with the Will. If the Will does not name any
executor, an application can be filed in the court for grant of Letter of Administration for the
property.
 ATTESTATION OF WILL-
Attesting means signing a document for the purpose of testifying the signature of the executants.
It is necessary that both the witnesses must sign in the presence of the testator but it is not
necessary that the testator have to sign in their presence. Further it is not necessary that both the
witnesses have to sign at the same time.

Essential Characteristics of a Will

A Will can be made at any time in the life of a person. A Will can be changed a number of times and
there are no legal restrictions as to the number of times it can be changed. It can be withdrawn at
anytime during the lifetime of the person making the Will. A Will has to be attested by two or more
witnesses.

The essential features are:

1. Legal declaration made by the testator- The documents purporting to be a Will or a testament
must be legal, i.e. in conformity with the law and must be executed by a person legally competent
 to make it. Further the declaration of intention must be with respect to the testator’s property. It
is a legal document, which has a binding force upon the family.
2. Disposition of property- the declaration in the will must pertain to the property of the testator. In
a Will, the testator bequeaths or leaves his property to the person or people he chooses to leave
his assets/belongings.
3. Takes effect after death: The Will is enforceable only after the death of the testator. Under section
18 of the Registration Act the registration of a Will is not compulsory. Also, the SC in Narain Singh
v. Kamla Devi 1953 has held that mere non-registration of the Will cannot be drawn as an inference
against the genuineness of the Will. However it is advisable to register it as it provides strong legal
evidence about the validity of the Will. Once a Will is registered, it is placed in the safe custody of
the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen. It is to be
released only to the testator himself or, after his death, to an authorized person who produces the
Death Certificate. Since a testamentary disposition always speaks from the grave of the testator,
the required standard of proof is very high. The initial burden of proof is always on the person who
propounds the Will.

Types of Wills
The Indian Succession Act (ISA) recognizes two distinct categories of wills: Unprivileged Wills and
Privileged Wills.

 Conditional Wills: A Will maybe made to take effect on happening of a condition. Such a Will, which
is valid only in the event of the happening of some contingency or condition, and if the contingency
does not happen or the condition fails, is called a conditional or contingent Will.
In Rajeshwar v. Sukhdeo 2014 the operation of the Will was postponed till after the death of the
testator’s wife. However if it is ambiguous whether the testator intended to make a Will
conditional, the language of the documents as well as the circumstances are to be taken into
consideration.
 Joint Wills: Two or more persons can make a joint Will. If the joint Will is joint and is intended to
take effect after the death of both, then it would not be enforceable during the life time of either
and is revocable at any time by either during the joint lives or after the death of the one.
 Mutual Wills: Two or more persons may agree to make mutual Wills i.e. to confer on each other
reciprocal benefits. In mutual Wills the testators confer benefit on each other but if the legatees
and testators are distinct, it is not a mutual Will. Mutual Wills are also known as reciprocal Wills
and its revocation is possible during the lifetime of either testator. Where joint Will is a single
document containing the Wills of two persons, mutual Wills are separate Wills of two persons. A
husband and wife will execute a mutual will to pass on all benefits to the other person during their
lifetime.
 Concurrent Wills: 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.
 Privileged Wills- Section 65 of the ISA defines “Privileged Wills”. According to this provision,
o any soldier employed in an expedition or engaged in active warfare,
o any airmen similarly employed or engaged, or
o any mariner at sea,
who has attained the age of eighteen, may dispose of his by a will made in the manner
provided in section 66. Such wills are called privileged wills. These people are given the
privilege because of the risk associated with their job. A mariner includes- navy and merchant
 navy. It also includes other people supporting the above persons such as doctors, nurses,
cooks, etc.
 Unprivileged Wills- wills that do not fall within the definition of Privileged Wills are considered
“Unprivilegd Wills.” These are the typical wills made by individuals who are not engaged in military
or maritime activities as described in the ISA.

Important points to consider while preparing will

1. Clear and Legible Text of Will: Whenever possible, it is advisable to type and print the Will so that
the text is clear and unambiguous. If the Will is handwritten, ensure that it is written in clear and
legible handwriting without any overwriting or cancellations.
2. Mention the Execution Date: The Will should explicitly state the date on which it is executed.
3. Language Familiar to Testator: The Will should be written in a language that the Testator fully
understands and is familiar with.
4. Signature on each page: The Testator should put their full signature on each page of the Will to
signify their approval and acknowledgment.
5. Independent Witnesses: While there is no legal prohibition, it is recommended to avoid having any
of the legatees (beneficiaries) serve as witnesses to the Will.
6. Witnesses of younger age: It is advisable to choose trusted witnesses who are in a younger age
group as they might be required to depose in court of law in case the will is challenged.
7. Clarity in Asset Distribution: Clearly state the intended distribution of assets in the Will to avoid
any ambiguity or confusion.
8. Clear Description of Immovable Assets: Provide a comprehensive and precise description of
immovable properties/assets, often in a separate schedule attached to the Will.
9. Particulars of Bank and Demat Accounts: Including a list with accurate details of bank accounts and
demat accounts can be beneficial for the Executor while filing a petition for Probate.
10. Avoid Extraneous Remarks: Ensure that the Will does not contain any extraneous remarks or
comments that could potentially lead to controversies in the future.
11. Revocation of Previous Wills: Clearly state whether the Will is the first Will or if it revokes any
previous Wills, testamentary dispositions, or amendments. A paragraph explicitly revoking
previous Wills can be included.
12. Medical Certificate of Testator’s Mental Capacity: Annex a certificate from a qualified registered
medical practitioner confirming that the Testator was of sound mind, memory, and understanding,
as well as in good physical and mental health at the time of making the Will.
13. Exclusion of Heirs: If any heirs are to be excluded from receiving a legacy for specific reasons,
clearly state this exclusion in the Will and preferably provide a brief explanation for the decision.
14. Reasons for Non-Heir Legacies: If a legacy is granted to someone who is not an heir, briefly record
the reasons for granting such a legacy.

Concluding Remarks
Preparing a Will is a crucial step in ensuring the smooth distribution of assets and the fulfillment of the
Testator’s wishes after their demise. It is essential to maintain clarity and precision in the language,
accurately describe assets, and carefully consider the selection of witnesses and beneficiaries. Seeking
legal advice during the Will preparation process is highly recommended to ensure compliance with
relevant laws and regulations. Remember, a well-drafted and properly executed Will can provide peace
of mind, protect the interests of loved ones, and simplify the administration of the estate.