WILL

· ‘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 [ Section 2(h) of
Indian Succession Act, 1925].
· A will is the legal instrument Whereby a
person declares what is to be done with his
property after his death.
· Will means the legal declaration of the
intentions of the test data with respect to
his property which he desires to be carried
into effect after his death.
· A Will is, therefore, the legal declaration of
a man’s intention which he wills to be
performed after his death or an instrument
by which a person makes a disposition of
his property to take effect after his death
· ‘Will’ as per General Clause Act, 1897 shall
include a Codicil and every writing making
a voluntary posthumous disposition of
property – Section 3(64).
· ‘Codicil’ means an instrument made in
relation to Will and explaining, altering or
adding to its dispositions and is deemed to
 form part of the Will – Section 2(d) of
Indian Succession Act, 1925.
• (a) The document must be in
accordance with the requirements laid
down under section 63 of Indian
Succession Act, 1925; i.e., executed by a
person competent to make Will and
attested as required under the Act.
• (b) The declaration should relate to the
properties of the testator, which he wishes
to bequeath.
• (c) The declaration must be to the
effect that it operates after the death of
Testator.
• (d) It is of an ambulatory nature which
can be modified or altered at any time by
the testator.
• (e) After the Indian Succession Act,
1925, Wills (except made by
Mohammedans) should be made in writing.

Who can make a Will?

· Section 59 of the Indian Succession Act,
provides for the persons capable of making
wills.
· Accordingly, every person of sound mind
not being a minor may dispose of his
property by will.
· A married woman may dispose by will of
any property which she could alienate by
her own act during her life. (Expln. 1).
· Even persons who are deaf or dumb or
blind can make Will provided they are able
to know what they do by it. (Expln.2).
· Further, a person who is ordinarily insane,
may make his Will during the interval in
which he is of sound mind. (Expln.3).
· However no person can make a Will while
he is in a state of mind arising from
intoxication or from illness or from any
other cause such that he does not know
what he is doing (Expln. 4).
· The testamentary capacity is recognized
only in a sound disposing state of mind.
· Soundness of mind denotes the mental
capacity of the testator as to what he is
doing, his capability of understanding his
extent of his property, the person who is
the object of his bounty and the persons
who are thereby excluded.
· Testamentary disposition is personal, it can
not be delegated to any other person.
 · A testator can not confide to another the
right to make a will for him
Codicil- Section 2B of the Indian Succession
Act defines this term it means an instrument
made in relation to a will and explaining
altering or adding to its dispositions and shall
be deemed to be a part of the will.
This word is derived from the Roman word
codicillus meaning and informal will.
According to the definition three things are
evident:-
1. That It cannot be oral but must be an
instrument
2. It must have been made in relation to a
will which has already come into existence
3. That its object is to explain order or add
to the dispositions under the will.
· The purpose of a codicil is to make some
slight changes in a well which has already
been executed though major alterations
will not invalidate its dispositions.
· In practice however a new will is executed
by testator if he desires to make
substantial changes either in the bequests
or in the legatees or the persons who are
named originally as executors.
 · Generally a good codicil is in the same
form as a will.
· Generally the same principles are applied
by the courts in construing a codicil as in
the case of a will.
· The will of a testator and all the codicils he
may have executed if more than one will be
read together as 1 testamentary
disposition.
· Where the language of a will is open to two
constructions the codicils will be looked
into in order to arrive at the true meaning
and intention of the testator.

Types of Wills
Under the Indian Succession Act, Will can be
Privileged Will or Unprivileged Will.
1)Privileged Will
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
Wills made in the manner provided in Section
66. Such Wills are called privileged Wills.
Privileged Wills may be made orally and may
not always be in writing. If written in
handwriting of testator, it need not be signed
or attested. It is governed by sections 65 & 66
of the Indian Succession Act.

2)Unprivileged Will
Wills made by the persons other than stated
above are Unprivileged Will. Such Wills are
required to be in writing, signed by testator
and attested by the two witnesses (except
those made by Mohammedans). It is governed
by section 63 of the Indian Succession Act.

3)Conditional or Contingent Wills:-

A will maybe soul mate as to take effect only
on a contingency. Where the operation of a
will is made dependent on the testators son
predeceasing the testator the will would be
contingent will. A testator may make a well
subject to a condition that if the condition does
not happen it will be inoperative. Thus where a
husband and wife jointly make a holograph to
take effect in the event of both dying
simultaneously by some wartime mischance,
the wife died a natural death and the husband
survived it was held at the document was
inoperative as a will.
4) Joint wills:-
Two or more persons may make a joint will. It
will take effect as if each has properly
executed a will as regards his own property. If
the will is joined and is intended to take effect
after the death of both it will not be admitted
to probate during the lifetime of either. Joint
wills are revokable at any time by either
during the joint lives or after the death of one
by the survivor.

5) Mutual Wills:-
Two persons may agree to make mutual wills
that is to confer on each other reciprocal
benefits. A will is 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 test data and legatee towards
each other. But where the legatees are distinct
from the testators there can be no question of
a mutual bill. Mutual bills are also sometimes
called reciprocal bills and the distinction
between a mutual will and a joint will is well
brought out in Kochu Govindan Katmal
versus TT Lakshmiamma.

6) Oral Wills :-
 · In view of section 57 of Indian succession
act no oral will can be legally made even by
Hindus and at present even wills by Hindus
must be in writing and signed and attested
by two witnesses. Still there is the
Mohammedan community among whom
oral will recognized.

7)Holograph Wils:-
· When a will is written by the testator
himself. it is called a holograph will and is
perfectly valid even if the executant, is not
a soldier airman or a mariner provided the
other formalities of execution and
attestation are satisfied.

IMPORTANCE OF A VALID WILL

The importance of writing a valid will cannot
be undermined. The presence of a will not only
makes estate planning efficient and effective
but also enables the family members of the
deceased to avoid unnecessary family feuds
and litigation. Moreover, it helps to secure the
interests of legal heirs of the deceased from
any relatives or claimants who may arise post
the death of the deceased to claim their share.
The most important purpose that a will serves
is the differentiation of the nominee from the
beneficiary. A nominee is that individual who
holds the property before its final allocation as
per the lines of the will drawn, while the
beneficiary is the one who receives the
property ultimately. A will helps the testator to
efficiently allocate a nominee for the
distribution of assets as per will.
One of the major benefits of a will is that it
helps to plan out funds and guardians for
minor children or dependants. In absence of a
will, it becomes the sole discretion of the
courts to allocate funds and appoint guardians
in case of unfortunate death of parents.
However, using a will, parents or a single
parent can appoint guardians and allocate
funds for their children’s future and education.
In the present day, where digital presence is a
major source of revenue for social media
personalities, a will helps to appoint executors
to manage the social media presence of the
deceased after their death and govern the
revenue generated from that source.
NEED FOR A WILL:
There are quite a few advantages of executing
a Will, namely:
1. A well-drafted Will helps avoid family
dispute regarding the property of the testator
and in case a dispute arises, the beneficiary of
the estate has a formidable document in his
favour.
2. The law of inheritance does not consider
the fact as to whether the deceased wished or
did not wish to let any of the family members
inherit his property and in what proportion
whereas by way of a Will the testator can
apportion the property as per his wish
3. At times it has been seen that the deceased
had properties both immoveable and moveable
which his inheritors may not know, however, a
Will ensures that all kinds of property are
fairly distributed by the testator during his
lifetime.
4. It is a very standard legal requirement now
for transferring real estate, bank deposits,
stocks & shares, interest in the business. A
well-drafted & registered Will ensures the
legal requirements are met.
5. The Will ensures that there are no bogus
claims after the death of the testator.
ESSENTIAL ELEMENTS OF A WILL:
The following checklist in a Will helps ensure
its enforceability:
1. The Will should have the details of the
testator, for example name, address.
2. The need for making the Will should be spelt
out along with the fact that the testator is of
a sound mind and is making the Will
voluntarily and there is no coercion.
3. Use of unambiguous language in
bequeathing of the estate.
4. The name of the executor (The person
named by the testator to execute the
testator’s wishes) should be mentioned.
5. The schedule of properties should be
appended and
6. The Will should be signed by the testator
and attested by two witnesses.

Language, Stamp Duty & Registration

Preparation of a Will does not require any
specific legal language. Any form of writing
printing or type writing may be employed.
However, the language should be as simple as
possible and free from technical words and
easily intelligible to a layman.

A Will does not require any stamp duty.

Registration of Will is not mandatory. It is

optional. (Section 18(c ) Registration Act,1908)
However a registered Will has certain
advantages. Any testator may, either
personally or by duly authorized agent deposit
with any Registrar his Will in a sealed cover
superscribed with the name of the testator and
that of his agent (if any) and with a statement
of the nature of the document as per Section
42 of Registration Act, 1908. The testator, or
after his death any person claiming as
executor or otherwise under a Will, may
present it to any Registrar or Sub- Registrar
for registration under section 40 of the
Registration Act, 1908.

Attestation
The Will must be attested by two or more
witnesses by complying with the following
requirements:
• (i) Each of them must have seen the
testator sign or affix his mark to the Will or
has seen some other person sign the Will,
in the presence and by the direction of the
testator, or
• (ii) Each witness has received from the
testator a personal acknowledgment of his
signature or mark,or of the signature of
such other person; and
• (iii) Each witness must sign the Will in
the presence of the testator.
However it is not necessary that more than
one witness must be present at the same time,
and no particular form of attestation is
necessary.

Construction of Wills
Apart from any statutory requirement as is
execution attestation no technical words and
necessity for the will and the form of the will is
also immaterial There are two cardinal
principles in the construction of Wills, deeds
and other documents. The first is that clear
and unambiguous dispositive words are not to
be controlled or qualified by any general
expression or intention. The second is, to use
Lord Denham’s language, that technical word
or words of known legal import must have
their legal effect even though the testator uses
inconsistent words, unless those inconsistent
words are of such a nature as to make it
perfectly clear that the testator did not mean
to use the technical terms in their proper
sense.
(i) Cardinal maxim: The cardinal maxim to be
observed in construing a Will is to endeavour
to ascertain the intentions of the testator. This
intention has to be primarily gathered from the
document which is to be read as a whole
without indulging in any conjecture or
speculation as to what the testator would have
done, if he had been better informed or better
advised.
(ii) Relevant considerations: In construing the
language of a Will, the courts are entitled and
bound to bear in mind other matters than
merely the words used. They must consider
the surrounding circumstances, the position of
the testator, his family relationship, the
probability that he would use words in a
particular sense and many other things which
are often summed up in somewhat picturesque
figure. The court is entitled to put itself into
the testator’s arm chair.
(iii) Avoidance of intestacy: If two
constructions are reasonably possible and one
of them avoids intestacy while the other
involves it, the court would certainly be
justified in preferring that construction which
avoids intestacy.
It is settled law that words in a Will must be
construed in their ordinary grammatical sense
unless it is shown that a clear intention to use
them in a different sense exists and is so
proved.
(iv) Effect should be given to every
disposition: It is one of the cardinal principles
of construction of Will that to the extent that it
is legally possible, effect should be given to
every disposition contained in the Will unless
the law prevents effect being given to it. The
intention of the testator should be gathered by
giving a harmonious interpretation to the
various terms of the Will as a whole.
(v) Later part or last words to prevail in case
parts irreconcilable or there is repugnancy. – If
the several parts of the Will are absolutely
irreconcilable, the part that is later has to
prevail. In case of repugnancy, the last word in
the Will shall prevail. [CIT v. Indian Sugar
Mills Association]
Probate
Probate is a certificate granted under the seal
of Competent Court, certifying the Will (a copy
whereof is annexure thereto) as the Will of the
testator and granting the administration of the
estate of the deceased in accordance with that
Will to the executor named under the Will.

Letters of Administration
A letter of administration can be obtained from
the Court of competent jurisdiction in cases
where the testator has failed to appoint an
executor under a will or where the executor
appointed under a will refuses to act or where
he has died before or after proving the Will but
before administration of the estate. Letters of
Administration are not always necessary in
cases of intestacy of Hindus, Mohammedans,
Buddhists, Sikhs, Jains, Indian Christians or
Parsis. Letter of Administration is always
necessary where a person (governed by the
Indian Succession Act) dies intestate.

ISSUES FACED IN ABSENCE OF A WILL

Since the importance of having a will cannot
be undermined, there are various issues which
are faced in absence of wills in India that are
as follows:
1. Not having a valid will leaves the family of
the deceased vulnerable to unwanted legal
exposure in form of conflicts in division of
assets between the family members.
2. There is a high risk of poaching the assets
of the deceased by distant relatives or
creditors.
3. Very often the total assets of the deceased
are not known to the family members, who
in turn are unable to use them after his
death.
4. There is a risk of identity theft in the case
of social media presence of the deceased in
case no one has been appointed for the
management of the same
The preparation of a will is an intelligent work
on the part of the draftsman. He should,
therefore, study carefully laws relating to Real
Properties and the provisions of Part VI
sections 57 to 120 of the Indian Succession Act
and also Hindu Succession Act, Hindu
Adoptions and Maintenance Act before
drafting the Will.
The following broad outlines should be
followed while drafting a Will:
• – Mention the name and address of the
testator;
• – Mention of the fact that the testator
is making the will voluntarily and in sound
disposing state of mind;
• – The necessity or urgency, if any, for
exclusion of the will;
• – Enumeration of testators relatives
who would be entitled to his properties on
intestacy and to whom the bequests are
proposed to be made;
• – Details of procedure of making
bequests;
• – Use of clear and unambiguous
language;
• – Avoidance of conflict with the rule of
law. For eg.,rule against perpetuity (in this
connection, the provisions of sections 112-
118 of the Indian Succession Act must be
borne in mind)
• – Appointment of executor
• – Schedule of properties bequeathed;
• – Attestation of will by atleast two
witnesses;
 • – Provisions relating to bequest and
trusts created by the will should be
complete
• – Interest conveyed by will should be
clearly defined. A will or bequest not
expressive of any definite intention is void
for uncertainty.

Specimen Forms

Short Form of a Will

This is the last Will of mine, AB, etc., made this the ..........................
day of .......................... at .......................... which cancels my will
dated .......................... made in favour of .......................... now
deceased.
WHEREAS I had made a Will on .......................... bequeathing all my
property in favour of .........................., my .......................... (state
relationship).
AND WHEREAS the said .......................... died on ..........................
leaving behind ..........................
NOW I declare that:
2. I hereby revoke my former Will dated, .......................... in favour of
.......................... aforesaid.
3. I bequeath all my properties to ..........................
my .......................... (state relationship) absolutely.
4. I bequeath the following annuities to commence from the date of
my death and to be paid in monthly instalments :
(i) To my daughter CD, etc., an annuity of Rs.......................... to be
paid during her life ;

(ii) To my nephew EF, etc., an annuity of Rs.......................... for his

life.
(iii) To my old servant GH, etc., an annuity of Rs..........................
during his life.
IN WITNESS WHEREOF I the said AB have signed this Will here
under the day and year first written above.

(Sd.)..........................
(AB)

Signed by the above-named AB in our presence at the same time and

each of us has in the presence of the testator signed his name
hereunder as an attesting witness.
1..........................

2..........................

Simple Will Giving All Property To Wife

I, AB, etc hereby revoke all former Wills and codicils made by me and
declare this to be my last Will whereby I bequeath and devise all my
movable and immovable property whatsoever to my wife,CD and
appoint her sole executrix of this Will.
IN WITNESS WHEREOF. I have signed this Will hereunder on
the.................day of.............

(Sd.)..........................
(AB)

Signed by the above-named testator in our presence at the same time

and each of us has in the presence of the testator signed his name
hereunder as an attesting witness.

1..........................
2..........................
Will by a Hindu in Favour of Family

This is the last Will of mine, AB, etc., a Hindu, made this
the.......................... day of .......................... voluntarily and while in
sound state of mind.

WHEREAS I am now 70 years old and have been keeping indifferent

health for a past few months ;

AND WHEREAS I am possessed of considerable movable and

immovable properties more particularly described in the schedule
annexed hereto which are my self-acquired properties and which
were acquired without any detriment to the ancestral property or to
the family funds and I have the absolute powers of disposal over the
same ;

AND WHEREAS I am anxious to make necessary arrangements in

respect of the enjoyment of my properties after my life-time so that
unnecessary misunderstanding and consequential wasteful litigation
between the members of my family may be avoided. Therefore, I am
executing this last Will and testament of mine of my own free will
voluntarily without any compulsion or pressure of any person and
with a sound disposing mind and declare as follows :

4. I hereby revoke all former Wills and codicils made by me at any

time heretofore.

5. I have my wife CD, two daughters EF and GH and two sons KL

and MN who will be entitled to succeed to my properties under
law in the normal course. But my daughters are all married and
they are living separately with their husbands. They have been
properly and well provided for during their marriage. They are
therefore not given any share in my properties under this Will.

6. I bequeath the property bearing No.......................... described

as item No. 1 in the Schedule hereto to my first son KL
absolutely to be held and enjoyed by him with full and absolute
powers of alienation.

7. I bequeath the property bearing No……………………..described

as item No.2 in the Schedule hereunder to my second son MN
absolutely to be held and enjoyed by him with full and absolute
powers of disposal.

8. I bequeath to my wife CD the property bearing

No.......................... and described as item No. 3 in the Schedule
hereto absolutely to be held and enjoyed by her with full and
absolute power of alienation.
 9. Any assets, movable or immovable, which might be omitted from
being mentioned in this Will or which may hereafter be acquired
by me shall be taken by my wife and the two sons aforesaid in
equal shares absolutely.

10. Though I have bequeathed no share in my properties to my

daughters aforesaid, as a token of love and affection for them I
hereby direct my two sons KL and MN that each one of them
will pay to each one of my daughters a sum of
Rs.......................... and this sum shall be a charge on the
properties allotted to my above sons respectively hereto.

11. All the jewellery and ornaments, gold and silver, will belong to
my wife absolutely and my sons or daughters aforesaid will have
no right to the same.

12. I hereby appoint my two sons KL and MN as the joint executors

under this Will. SCHEDULE OF PROPERTY

1..........................

2..........................

3..........................

IN WITNESS WHEREOF I, the above-named testator have signed this

Will hereunder the day and year first written above.

Signed by the above-named AB in our presence at the same time and

each of us has in the presence of the testator signed his name
hereunder as an attesting witness.

1..........................

2..........................

Will in Favour Of Minor Son

I, AB, etc. execute this last Will of mine this day of .......................... in
the city of .......................... voluntarily out of my own free will without
any compulsion or pressure from any person and having a second
disposing mind.

WHEREAS I had made a Will dated .......................... in favour of my

wife CD bequeathing all my properties to her ;
AND WHEREAS the said wife died ON leaving EF, aged 12 years as
our only son.

1. I hereby revoke the Will made in favour of my wife CD

on ........................................................................

2. I hereby declare and bequeath all my properties, movable and

immovable, belonging to me or which may belong to me and
remain undisposed of during my life-time unto EF, my son
aforesaid.

3. In case I should die before the said son EF attains majority, I

appoint GH, etc..as an executor under this Will, who shall
realise all my to outstanding and administer the estate left by
me for the benefit of EF, of the said legatte after defraying all
expenses of such administration. The said executor shall be
entitled during such administration to charge Rs..........................
per month as remuneration for his service till the aforesaid EF
attains majority. When the said EF attains majority, the said GH
shall handover all the estate then in existence unto the said EF.
During the minority of the said EF, the executor shall act as
guardian of the said EF and shall look after his education and
training in a be fitting and useful manner so as to earn a decent
living either as an engineer or as a member of some other noble
profession. However, if the said EF attains majority during my
life-time and survives me, this provision relating to appointment
of the executor shall not be operative and the said EF shall be
entitled to receive and appropriate as owner all and every part
of the estate left by me.

IN WITNESS WHEREOF I have signed this Will in the presence of

witnesses hereunder who have attested the same in my presence.

(Sd.)..........................

(AB) Testator

Signed by the above-named AB in our presence at the same time and

each of us has in the presence of the testator signed his name
hereunder as an attesting witness.

1.......................... 2..........................

I have examined the testator and found him in sound disposing mind
and as having fully understood the contents of this Will.

(Sd.).......................... (Doctor)
ENFORCEMENT OF A WILL:
A Will can be enforced by the executor. He is the
safe-keeper of the rights of the beneficiaries under
the Will. The provision of the Indian Succession Act
makes it mandatory for enforcement of rights under
the Will only by way of a Probate. However, this bar
does not apply to Hindus in India except if the
immovable property is in Kolkata, Mumbai and
Chennai. Probate means certifying of the Will by a
court of competent jurisdiction.

The Executor can apply for a grant of probate in

the court of competent jurisdiction by way of a
proper application.

It is advised to execute a Will in India as per the

Indian laws applicable for the assets located in
India.