DRAFTING, PLEADING & CONVEYANCE

Department of Laws, Panjab University

ACKNOWLEDGEMENT

I express my sincere gratitude towards all those who helped accomplish this
project. First and foremost, I am deeply grateful to Mr. Vivek Arora, whose
insightful guidance, thoughtful feedback, and constant encouragement were vital
to the completion of this work. His expertise and dedication helped shape the
direction and scope of my research, and I am truly thankful for that.

I would also like to sincerely thank the Department of Laws, which provided
me with the opportunity and foundation to pursue this project. Their commitment
to fostering an enriching academic environment played a key role in the success
of this endeavor.

I am particularly grateful to my fellow students and colleagues, whose shared

experiences and collaboration made the research process more stimulating and
insightful. Their friendship and willingness to exchange ideas have been
invaluable throughout this journey.

I owe a great debt of gratitude to my family and friends for their unwavering
belief in me. Their constant support, both emotionally and mentally, helped
sustain me during challenging moments, and their encouragement was a driving
force in seeing this project through to the end.

To all those who provided support in any way, I extend my deepest appreciation.

- Parul Thakur

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TABLE OF CONTENTS

Sr. No. Content Pg. No.

1. Will 3

2. Will under Indian Succession Act, 1925 4

3. Essential Requirements of Will 5

4. Who can make a will 7

5. Beneficiaries 8

6. Capable Property 8

7. Types of Will 9

8. Probates & Letters of Administration 11

9. Codicil 13

10. Conclusion 14

TABLE OF AUTHORITIES

1. Indian Succession Act, 1925

2. Basic Fundamentals of Legal Pleadings, Drafting & Conveyancing;
Dr. Neetu Gupta; 5th Edn
3. GC Mogha; Mogha’s Law of Pleadings in India with Precedents, 18th
Edn

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 DRAFTING, PLEADING & CONVEYANCE
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WILL

1.1 What is a Will?

In legal terms, a Will is defined as “the legal declaration of the intention of the
testator, with respect to his property, which he desires to be carried into effect
after his death.” Simply put, a Will—or Testament—is a formal document
through which an individual, known as the testator, determines the manner in
which their property and assets will be distributed upon their death. It can be
created by any person at any stage of life.

It is important to note that a Will does not take effect until the testator's passing.
Until then, it remains a revocable instrument, meaning that the testator can
modify or revoke it at any time, provided they are of sound mind and legal
capacity. This flexibility allows the testator to adjust the Will to reflect any
changes in circumstances, such as acquiring new assets, the birth of children, or
shifts in personal relationships.

A Will is a crucial legal document that ensures your intentions regarding the
distribution of your assets, property, and possessions are honored and legally
enforceable after your demise. It provides clarity and certainty, thereby
minimizing disputes and misunderstandings among your heirs and beneficiaries.

The law of succession is divisible into two parts testamentary and intestate
succession. When a person makes a will disposing of his property it is governed
by the law of testamentary succession. In cases where a will has not been made
then the law of intestate succession kicks in and his property is acquired by his
heirs as per intestate law.

When an individual passes away without having prepared a Will—a situation

legally referred to as dying intestate—numerous complications may arise. The

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absence of a Will often leads to prolonged legal procedures, emotional distress,

and financial strain for the surviving family members.

1.2 WILL UNDER INDIAN SUCCESSION ACT,1925

The provisions under the Indian Succession Act, 1925 deals with a will made by
any Hindu, Buddhist, Sikh or Jain in India. Muslims are not bound by this act 1;
disposing of their properties takes place by the Muslim Law only.

Section 2(h) of the Indian Succession Act, 1925 defines Will as:

“Will means the legal declaration of the intention of a testator with respect to his
property which he desires to be carried into effect after his death.”

Thus, a Will is a formal document through which an individual (testator)

expresses their wishes regarding the distribution or management of their property
and assets. It becomes legally enforceable only after the testator’s death, ensuring
they retain full control over their property during their lifetime. The term "legal
declaration" emphasizes that the Will must meet legal requirements to be valid
and binding, thereby providing clarity and certainty. It reflects the testator’s
autonomy in deciding how their estate is handled, minimizing disputes, and
ensuring their intentions are honored.

1
Section 58, Indian Succession Act,1925

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1.3 ESSENTIAL REQUIREMENTS OF THE WILL

Legal Declaration:

 The document 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.

 Legal competency encompasses a person who is not a minor, who is of sound

mind and the will must be free from fraud, coercion or undue influence. This
also includes the ability of the testator to execute a will, which for obvious
reasons can only be limited to the disposition of property owned by the testator
and property as regards which he or she is competent to dispose.

Disposition of Property:

 The declaration should relate to the disposition of the property of the person
making the Will. If the document does not purport to clearly distribute the
testator's property in a particular manner after his death, it may not be
considered a will. The recitals as regards the disposition of property must
therefore be made with unimpeachable clarity.

Revocation of the Will:

 The Will can be revoked by its maker before his death. Only the last valid
declaration by way of Will of the deceased is operative in law.

 If any illegal or immoral conditions are imposed by way of Will, then these
conditions shall be void but the Will shall remain valid.

Registration of the Will:

 The registration of a document provides evidence that the proper parties had
appeared before the Registrar and that the Registrar had attested the same after

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ascertaining their identity. In India, the registration of Wills is not compulsory

even if it relates to immovable property.

 The non-registration of a Will does not lead to any inference against the
genuineness of a Will. In other words, registration therefore does not give any
special sanctity to the Will though registration of the Will by the testator
himself evidences the genuineness of the Will.

 A Will is to be registered with the registrar/sub-registrar where a registration

fee would have to be paid as per the law of the state. The testator must normally
be personally present at the registrar’s office along with witnesses at the time
of registration.
 Whether registered or not, a Will must be proved as duly and validly executed,
in case a dispute arises, as required by the Indian Succession Act. Once a Will
is registered, it is consigned to the safe custody of the Registrar and therefore
cannot be dealt with in any manner, say, it cannot be tampered with or
destroyed. And in cases where the genuineness is sought to be impeached, the
will can be called for from the Registrar's custody.

Satwant Singh v. Amar Kaur2, the main issue was whether a Will which is
registered is required to be superseded only by a registered Will/ document?
Punjab & Haryana High Court held that a Will is not required to be
compulsorily registered. Registration of the Will is optional and not
compulsory as provided in Section 18 of the Registration Act, 1908. Hence, a
Will cannot be ignored only on the ground that previous Will is registered
whereas subsequent Will is unregistered.

2
2019 (1) PLR 734

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Language of the Will:

A Will can be written in any language and no legal words need to be used in a
Will, however, the words used should be lucid and unambiguous so that the
intention of the testator is reflected in the Will.

Attestation:

A Will must be attested by two witnesses who must witness the testator
executing the Will. The witnesses should sign in the presence of each other and
in the presence of the testator. This is to avoid any controversy as regards
execution of the will. The witnesses need not know the contents of the will.
Only that what they are attesting to is the testator signing the will in their
presence.

Under Parsi and Christian law, a witness cannot be an executor or legatee.

However, according to Hindu Law, a witness can be a beneficiary or a legatee.
This is because the concept of joint or coparcenary property prevails amongst
Hindus. A Muslim is not required to have the Will attested if it is in writing.

1.4 WHO CAN MAKE A WILL

Section 59 of the Indian Succession Act, 1925, stipulates that any individual who
is of sound mind and has attained the age of majority, as defined by the Indian
Majority Act, 1875, is legally competent to make a Will. This provision
emphasizes the testator's ability to comprehend the contents of the Will, the nature
of the assets involved, and the implications of their decisions regarding the
distribution of their property. The responsibility to prove that the Will was made
voluntarily and by a person capable of doing so rests on the individual presenting
or advocating the Will. Importantly, even if a person suffers from insanity but
creates a Will during a lucid interval when they are of sound mind, the Will is
deemed valid. This ensures that the legal requirements focus on the testator's

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mental capacity at the time of making the Will rather than their general mental
condition.

The Allahabad High Court in Ganga Prasad vs. Munna Lal & Others,3 addressed
the issue of Will's validity concerning the testator's mental capacity. The court
emphasized that the propounder of the Will must demonstrate that the testator
was of sound mind at the time of its execution. The court stated, "The burden of
proving that the maker of a will did so freely and when capable of making the
will is upon the individual who propounds the will."

1.5 BENEFICIARIES

Under the Indian Succession Act, 1925, any person or entity capable of holding
property can be a beneficiary of a Will. This includes natural persons such as
minors and individuals of unsound mind, as well as legal entities like
corporations, trusts, and other juristic persons. Minors, though unable to manage
property themselves, can inherit through a Will, with a guardian appointed to
manage the assets until they reach the age of majority. Similarly, persons of
unsound mind can inherit property, which may be managed on their behalf by a
legal guardian. Even unborn individuals can be beneficiaries, provided they are
born alive within a legally defined period. This broad eligibility highlights the
flexibility of testamentary freedom, allowing testators to designate beneficiaries
ranging from family members and friends to charitable organizations or business
entities, thereby ensuring their wishes are honored.

1.6 CAPABLE PROPERTY

With regard to property that can be disposed of by a will, there are no restrictions
save that the testator must be capable of disposing of the property. This means
that the property in question must be self-acquired property. As concerns ancestral

3
AIR 2018 (NOC) 619 (ALL)

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property Section 30 of the Hindu Succession Act allows a Hindu to give away in
his will his share in coparcenary property which is something that a Hindu is in
other circumstances not permitted to do.

1.7 TYPES OF WILL

1. Privileged Will

Privileged Will is governed under the provision of Section 65 of the Act. As per
the said provision, a Privileged Will means a Will made by a soldier who is being
employed in an expedition or engaged in actual warfare, or an airman so
employed or engaged, or any mariner being at sea. Such individuals must
complete the age of 18 (eighteen years) in order to dispose off the property by
way of a Will. A privileged Will may be executed in writing or by word of mouth.
But 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. The Will may be written wholly by the testator, with his own hand. In such
a case, it need not be signed or attested. It may be written wholly or in part by
another person, and signed by the testator. In such a case, it need not be attested.
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.4

2. Unprivileged Will

Unprivileged Will is governed under the provision of Section 63 of the Act. As

per the said provision, an Unprivileged Will means a Will created by 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. In simpler
terms, such individuals who do not classify as soldiers, airmen, or mariners will
fall under the category of Unprivileged Wills. It shall be signed or a mark will be

4
Section 66, Indian Succession Act, 1925

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affixed by the testator or by any other person by the direction of the testator. But
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. Further, it must be attested at least by two
or more persons.

3. Conditional Will

A Will whose legality is contingent upon the happening of an event or fulfilment

of a certain condition is known as a Conditional Will. Bequeathing a property as
per the Will depends upon the happening or non-happening of a particular
condition. As per Section 124 of the Act, “Where a legacy is given if a specified
uncertain event shall happen and no time is mentioned in the Will for the
occurrence of that event, the legacy cannot take effect, unless such event happens
before the period when the fund bequeathed is payable or distributable”.
Therefore, it can be understood that a Will comes into effect only after fulfilling
the particular condition which can be either in the form a condition precedent or
condition subsequent to the Will.

4. Concurrent Will

Concurrent Wills are the ones that are written by only one person, yet it covers a
variety of aspects related to the disposition of the property. In simpler terms, it
can be understood that separate Wills can be formulated by the testator basis the
properties located in different geographical locations. One Will could deal with
the disposal of movable properties while the other Will may deal with the disposal
of immovable properties.

5. Mutual Will

Mutual Wills are Wills created by two or more persons in order to confer on each
other reciprocal benefits. In simpler terms, it is an agreement entered into between
two or more persons to dispose of their property to each other or to any third

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person as per the particular manner or mode agreed upon by the parties. The
Hon’ble Supreme Court of India in the case of Kochu Govindan Kaimal and Ors.
Vs. Thayankoot Thekkot Lakshmi Amma and Ors5 made some observation in
relation to Mutual Will which is reproduced below for ease of reference:

“A Will mutual when two testators confer upon each other reciprocal benefits, as
by either of them constituting the other his legatee; that is to say, when the
executants fill the roles of both testator and legatee towards each other. But where
the legatees are distinct from the testators, there can be no question of a mutual
Will”.

PROBATES & LETTERS OF ADMINISTRATION

 A probate means a copy of the Will, certified under the seal of a competent Court
with a grant of administration of the estate to the executors of the testator, in
order that it may be dealt with. It is the official permission and evidence of an
executor’s authority. A probate is mandatory when the Will is executed by a
Hindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or
pertains to immovable property situated in those cities.

 That is evident from a reading of section 57 of the Succession Act,1925 and as

explained by the Supreme Court in Clarence Pais v. Union of India 6.

EFFECT OF GRANT OF PROBATE:

 A probate granted by a competent court is conclusive evidence of the

validity of a Will until it is revoked and no evidence can be admitted to
impeach it except in a proceeding to revoke the probate.

 However, it only establishes the legal character of the executor and in no

way decides the title or even the existence of the property devised. The

5
1959 AIR 71
6
AIR 2001 Supreme Court 1151

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grant of the probate decides only the genuineness of the Will and the
executor's right to represent the estate. It is conclusive evidence of the
testamentary capacity of the person who made the Will as to the
genuineness of the Will and appointment of the executors.

 It is well-settled law that the functions of a probate Court are to see that the
Will executed by the testator was actually executed by him in a sound state
of mind without coercion or undue inference and the same was duly
attested. The Court cannot, therefore, determine whether the testator had
or had not the authority to dispose of the suit properties which he purported
to have bequeathed by his Will.

 The Probate Court is also not competent to determine the question of title
to the suit properties nor will it go into the question of whether the suit
properties bequeathed by the Will were joint ancestral properties or
acquired properties of the testator. A suit is therefore maintainable
challenging the will even though probate has been granted, as was held
in Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon. 7

7
AIR 2008 Supreme Court 306.

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CODICIL

A codicil is an addendum of any kind to a will. Codicils can alter, change, add to
or subtract from the provisions in the will. They can be used to keep a will and
testament current and up to date.

A codicil can be used to add, remove, or change provisions in a will, as long as

the changes are not too significant. It must be executed with the same formalities
as the will itself, and it must be signed and witnessed in the same way. A codicil
is typically used when someone wants to make a few small changes to their will,
rather than creating a new will from scratch.

Codicils must be created by the original creator of the will. They are separate
documents in and of themselves and can lead to either minor or major changes in
the will. All codicils must meet the same legal administrative requirements as the
original will and testament, and they must each affirm that the original will is
valid except for the changes outlined inside.

When the person dies, both the original Will and the codicil are submitted for
approval by the court (probate) and form the basis for administration of the estate
and distribution of belongings of the writer.

Section 2 (b) of the Indian Succession Act, 1925 defines codicil as, "codicil
means an instrument made in relation to a Will, and explaining, altering or
adding to its dispositions, and shall be deemed to form part of the Will."

Thus, apart from the changes effected by the codicil, the Will remains valid in
all other respects.

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CONCLUSION

Wills and codicils are indispensable components of testamentary law,

empowering individuals to exercise autonomy over the distribution of their
property and ensuring their intentions are respected posthumously. As outlined in
the Indian Succession Act, 1925, a Will is a formal declaration of intent that
allows the testator to provide clarity regarding the management and transfer of
their assets, reducing potential disputes among heirs. Codicils, as legally
recognized modifications to Wills, offer the flexibility to address changes in
circumstances without the necessity of drafting an entirely new Will, maintaining
both the original intent and the evolving needs of the testator.

The distinction between privileged and unprivileged Wills, along with the
provisions for special circumstances, such as joint, mutual, and conditional Wills,
demonstrates the versatility of testamentary instruments in addressing diverse
needs. Furthermore, the ability to designate beneficiaries ranging from
individuals to legal entities reflects the broad applicability of Wills in personal
and societal contexts.

In conclusion, Wills and codicils serve as powerful tools to uphold an individual’s

testamentary freedom while ensuring fairness and legal certainty. By adhering to
the principles and legal standards discussed, these instruments not only secure the
testator’s wishes but also promote harmony among beneficiaries, mitigate
disputes, and contribute to a well-ordered succession process. They stand as a
testament to the balance of autonomy, responsibility, and justice within the
framework of succession law.

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