Sem II

Drafting, Pleading and

Conveyancing
Delivered by
Adv.Bhagyashree Dalvi
Govt Law College, Mumbai
Wills and Codicils
• Everybody likes to make sure that the life he has led has been meaningful
and is concerned about his property after his death.
• A person can ensure as to how his property should devolve and to whom it
shall devolve, after his death, through a Will.
• If a person dies without leaving behind his Will, his property would
devolve by way of law of intestate succession and not testamentary
succession (i.e. in accordance to the Will)
• 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. Will
is an important testamentary instrument through which a testator can give
away his property in accordance to his wishes.
• 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.
 Important Terms

• Intestate: This is when a person dies without leaving behind a valid will. There
are laws governing intestacy to determine how your assets are to be distributed
which will differ depending on your religion.
• Testator: A person who makes and executes a will is called a testator.
• Beneficiary/Legatee: A person or organisation whom you name in your will to
whom you give your assets.
• Executors: The people you name to handle the division of your assets. You can
have up to four executors. It’s generally best to name more than one executor, in
case one passes away.
• Probate: The legal document to be obtained by the executors after your death
giving them the authority to handle your assets.
• Administrator: A person who deals with the division of your assets if you
haven’t left behind a will.
 What is Will?

• Will: A Will is a solemn document by which a dead man entrusts to

the living to the carrying out of his wishes. S. S.2(h) of Indian
Succession Act, 1925 provides that 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.
• Will has been defined in Corpus Juris Secundum as A ‘Will’ is 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.
 Essential Features 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, each of who should have
seen the testator signing the Will.
The essential features are:
1. Legal declaration: 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:
• In a Will, the testator bequeaths or leaves his property to the person or people he chooses to leave his
assets/belongings.
• A Hindu person by way of his Will can bequeath all his property.
• However, a member of an undivided family cannot bequeath his coparcenery interest in the family
property

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 has held that mere non-registration of the Will an inference
cannot be drawn against the genuines 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.
 When is a Will Invalid?

• The burden of proving a will to be valid is upon the party putting forward the will. The will must
satisfy the conscience of the court that it is the last will of a free and capable testator. Now, who is a
free and capable testator? What disqualifies a person from making a valid will? Let’s find out:
• Every person of sound mind, not being a minor, may, of his/her own volition, dispose his/her
property through a will. So this means that, a will is valid if:
• Sound Mind: The person creating the will should be of completely sound mind at the time of
writing it. Therefore, a lunatic or idiot can never create a will. However, a person, let’s say with
Alzheimer’s, may create a will in case he/she is lucid at the time of writing it. On the other hand, a
completely sane person cannot have created a valid will if he/she was inebriated at the time of its
creation.
• Only Majors: A minor (a person below the age of 18) cannot make a will in India. A testementary
guardian is appointed to dispose the property of a minor.
• Of Own volition: If a will is attained through coercion, it is invalid. This means that, should a son
or daughter force (by being mentally or physically coercive), their parents into writing a will in
their favour, it is invalid.
• Only Own Property: A will can be made by any person, and it is often made in the absence of a
lawyer. For this reason, many people end up distributing even assets that don’t completely belong
to them. A wife may dispose a house that is in the name of her husband, for example. This creates
problems.
 Who gets my assets if I die without leaving
a will?
• If there is no will, the property will be distributed according to the personal law of the
deceased.
• The Indian Succession Act is diverse and states different laws of inheritance for different
communities.
• For example, if a Hindu male passes away without leaving a will, the wife and children
(including the daughters) share the inheritance. In this category there are further divisions.
• The testators personal law will govern what happens.
• If a Muslim male dies without leaving a will, at least two-thirds of his property must be
divided among family members.
• A Muslim wife cannot be dispossessed – the widow gets a definite share. However, the
children do not get an equal share.
• According to Muslim law the sons get twice the share of the daughters. It is best to
contact a lawyer if left without a will.
 Intestate Succession

• Unfortunately, not everyone bothers to make a will. This may be for a

variety of legitimate reasons or, more probably, neglect, but a death
intestate is a situation that exists merely on account of the lack of a
simple declaration.
• Intestacy has the potential to create legal disputes between family
members. In case of such a dispute, the law has also laid out rules for
members of different religions, as specified in Indian Succession Act,
1925, Hindu Succession Act, 1956, and by Shariat law, and these are
to be followed.
• Here is how the property will be divided, should it reach the courts:
• Male Hindu (covered under Hindu Succession Act; also includes Sikhs, Buddhists
and Jains)
1.First, the property will devolve upon relatives specified in Class I;
2.If there is no Class I heir, then upon Class II relatives;
3.In case there’s no Classs II heir, then upon agnates (those related to another wholly
through males, whether by blood or adoption, are agnates) and;
4.If there is no agnate, then upon the cognates (related, by blood or adoption, but not
wholly through males).
• Female Hindu
1.First, the property will devolve upon sons and daughters (including the children of
any predeceased son or daughter) and the husband in equal measure;
2.Secondly, upon the husband’s heirs;
3.If the husband has no heirs, then upon the parents;
4.Upon the heirs of the father;
5.Lastly, upon the heirs of the mother.
• However, any property a female Hindu inherits from her parents shall devolve, in case
she has no children (including the children of any predeceased son or daughter), upon
the heirs of the father. Similarly, property inherited from in-laws shall go to the in-laws’
heirs if she dies without children or grandchildren.
• Christians (covered under Indian Succession Act)
1.A third of the property shall go to the wife and the rest will be divided equally
among children (including the children of any predeceased son or daughter);
2.If there is no wife, the property will be divided among the children;
3.If there are no children, the property is shared equally by the wife and the
husband’s relatives.
4.Lastly, it will devolve upon the parents of the deceased;
• Parsis (covered by Indian Succession Act)
1.Half goes to the wife, the rest to the children;
2.If there is no wife, the property is distributed equally among children;
3.If neither wife nor child survives, the assets go to the parents of the deceased.
• Muslims (covered by Shariat)
The qazi (judge ruling according to Islamic religious law) takes the burial
expenses and makes a list of the assets of the deceased that need to be
distributed among wife and children.
• Hindu Undivided Family (HUF; by survivorship):
The property of an HUF devolves by survivorship. If the karta dies,
the property devolves upon the surviving members for four
generations. Regardless of the fact that the heirs are Hindu, the
property will not devolve in accordance with Hindu Succession Act.
• However, a Class I male or female relative may make a claim on a
share of the property, in which case the property would devolve upon
the claimant as provided under the Hindu Succession Act.
 How to Register a WILL?

• There is no requirement to pay Stamp duty, Court fees only Registration Fees has to be
paid of Rs 100/- in state of Maharashtra for creating a WILL. It is created on a plain
paper.
• It evidences that the parties (Testator and Witnesses) had appeared before the
registering officers (normally Sub-Registrar) for Registration of WILL.
• The officer attests the document after ascertaining the identity of parties. Registration of
a WILL is not compulsory in India even where it relates to immovable property.
• Registration evidences the genuineness of the a WILL. A copy of Registered WILL kept
in the safe custody of the Registrar for future reference. Some States provide exemption
from Probate of WILL, and accordingly, the property is directly transmitted to the
beneficiaries according to WILL.
• There is no inheritance tax in India, the property is transferred based on genuine WILL
without payment of Stamp Duty, whereas in other forms of Transfers, a requisite
amount of Stamp Duty is payable.
 Is Registration of Will Compulsory?

• In India, registration of Wills is not compulsory.

• A Will is not a compulsorily registerable document under section 17 of the
Registration Act, 1908, (Act), and according to section 18 (e) it is the testator’s
choice as to whether he wishes to register it.
• There is no stamp duty payable. But if one chooses to register a Will with the
applicable registrar/sub-registrar of assurances, the registration provides evidence
that the proper parties had appeared before the registering officer and the latter had
attested the same after ascertaining their identity.
• Once a Will is registered, it is placed in the safe custody of the Registrar and cannot
be tampered with, destroyed, mutilated or stolen.
• However, non-registration of a Will does not lead to any inference against its
genuineness. It doesn’t have to be executed before a notary public.
 Whether WILL is a conclusive Document?

• No, it is not a conclusive document.

• A WILL, registered or unregistered can be challenged, and once it is
so done, the document (WILL) has to be through entire trial process.
But, the success rate of such a challenge for a registered WILL is
comparatively negligible as compared to an unregistered WILL.
• A registered WILL is usually accepted by Courts, whereas an
unregistered WILL casts doubt on its authenticity when the estate is
bequeathed to an unrelated person outside the family of the deceased.
• Any person can challenge the WILL, as long as such person can
demonstrate before the Court any malice, fraud or tampering with the
document. It means anyone who may have an interest in the estate of
the WILL can challenge it.
• The law of WILL is liberal. There are no specific formats or restrictions enforced on
a WILL.
• It is therefore left to the Testator to write as per his own discretion. The WILL
supersedes the provisions of the Indian Succession Act, 1925. The heirs have right in
the property of deceased under the Indian Succession Act.
• But, when a WILL is executed, the heir cannot claim anything under the Succession
Act, whereas the terms / stipulations mentioned in the WILL shall prevail over any
other document or right.
• Therefore, this document of WILL is normally called as a Last WILL, as the testator
is expected not to have created a third party interest in his property after writing a
WILL.
• However, in case the testator happens to create any third party interest in his
property even after creating a WILL, but before his death, he can do so. Accordingly,
he should amend / alter or re-write his WILL. It is always advisable to periodically
amend the WILL, showing latest and true position of the estate of the Testator.
• A registered WILL should ideally be replaced with another registered WILL.
 Kinds of Wills

• Privileged Wills:
• Privileged Wills are a special category of Wills and other general Wills are known as
unprivileged Wills. S.65 of ISA provides that a Will made by a soldier or a airman or a
mariner, when he is in actual service and is engaged in actual warfare, would be a
privileged Will.
• S.66 provides for the mode of making and rules for executing privileged Wills. Ss. 65 and
66 are special provisions applicable to privileged Wills whereas other sections relating to
Wills are general provisions which will be supplementary to Sections 65 and 66 in case of
privileged Wills.
• Who can make privileged wills
• Any soldier on missions or engaged in actual warfare
• An airman on missions or engaged in actual warfare
• Any mariner being at sea
• A person who has completed 18 years of age
• Key Ingredients of Unprivileged Wills are as
follows
• 1) Any testator not a being any soldiers, airman on a
mission or engaged in actual warfare shall execute an
unprivileged will.
• 2) It should be signed by the testator.
• 3) The testator shall affix his mark to the will
• 4) The will shall be attested by two or more witnesses
 WILL

• I, __, son of Shri ___, aged _ years, resident

of ___________________, do hereby revoke all my former
Wills, Codicils and Testamentary dispositions made by
me. I declare this to be my last Will and
Testament.
I maintain good health and possess a sound mind. This
Will is made by me of my own independent decision and
free volition. Have not to be influenced, cajoled or
coerced in any manner whatsoever.
I hereby appoint my ____, as the sole Executor of this
WILL. The name of my wife is _____. We have two
children namely, (1)______ (2) ____, I own the following
immovable and movable
assets.
• 1) One Flat No._ in _____________.
• 2) Jewelry, ornaments, cash, National Saving Certificate,
Public Provident Fund,
shares in various companies, cash in hand and also with
certain banks.
• All the assets owned by me are self-acquired properties.
No one else has any
right, title, interest, claim or demand whatsoever on
these assets or properties. I have
full right, absolute power and complete authority on
these assets, or in any other
property which may be substituted in their place or
places which may be Acquired or
received by me hereafter.
• I hereby give, devise and bequeath all my properties, whether
movable or
immovable, whatsoever and wheresoever to my
wife, _________,
absolutely forever.
IN WITNESS WHEREOF I have hereunto set my hands on this _
day of , 20_ at __.

SIGNED by the abovenamed Testatrix as his last WILL and

Testament in our presence, who appear to have perfectly
understood & approved the contents in the presence of both of
us presents, at the same time who in his presence and in the
presence of each other has hereunto subscribed our names as
Witnesses.
WITNESSES :
1.
2.
Codicil
 What is a Codicil?

• One of the major advantages of creating a Will is that it comes into

effect only after the death of the testator.
• Until that event, the testator can revoke or alter a Will any number of
times. A document by which a Will is altered is known as codicil.
 Codicil Definition

• Section 2(b) of the Indian Succession Act defines a codicil as:

• ‘Codicil’ means an instrument made in relation to a Will, and
explaining, altering or adding to its disposition, and shall be deemed to
form part of the Will”.
 How to execute a codicil?

• A codicil must be executed similar to Will, being written and attested

by two witnesses. Further, as a codicil is a part of the Will, reference
must be made to the Will in interpreting the provisions of the Will and
vice-versa.
• Like a Will, a codicil can be altered, added to and further explained by
another codicil by proper execution and attestation by witnesses.
 Reasons for Altering a Will by Codicil

• 1. Beneficiaries are to be changed or others will be added

• 2. Separation or Divorce
• 3.Either the executor of the Will is dead or no longer in needed.
• 4.Marriage or authorized civil partnership
• 5. Property or Money inherited from another.
 Effect of Multiple Codicils

• Having multiple codicils makes the will appear confusing and the
judge may declare it invalid or may decide to uphold some of your
codicils and jettison the others.
• If your WILL is rejected by the court it is the same thing having lived
and died without a will to your honour.
• Your properties will be inherited by your next kin based on the local
laws even if it was not your original intention.
 Advantages of Codicils
1. Drafting a Codicil is cheaper than rewriting the will completely
2. You do not have to register a codicil as a new will
3. There is no Limit as to how many codicils you can add to your will
 Disadvantage of Codicil

1. When administering an estate and a copy of the codicil has gone

missing such part will not be taken into consideration .
2. Where the Number of Codicils was much and one is yet to be found,
it will be difficult knowing the main will of the principal.
3. The more codicils you have the more complicated issues might be
upon your death.
 General Terms often used in a Codicil
1. Amendment- This is an official change that has been made to a document.
2. Beneficiary- This is the individual whose name appears in the Will as the
intended recipient of the assets.
3. Jurisdiction- The legal region or authority to hear a case or enforce justice.
4. Probate- This is the authentic copy of will that has been validated by court.
5. Probate Court- This is the part of the judiciary that oversees all matters that
are related to Wills estates, guardianship, trusts and much more
6. Testator – This is the owner of the WILL or the creator of the document.
 Codicil to Will

• I,
• ABC, of , Indian Inhabitant, residing at _________________ , hereby make
this First Codicil as under:—
1.I have executed my last Will and Testament dated under which I have
appointed Mr. XYZ and Mr. PQR as the Executors of my said Will.
2.By this Codicil I hereby bequeath and grant the property bearing Plot No.
____________________ together with structure standing thereon situated at
____________________ in the State of Gujarat and standing in my name to
my relative Mr. LMN resident of
• __________________________. After my life the said Mr. LMN shall be the
absolute owner of the said property and notwithstanding the provisions of my
aforesaid Will, none of my heirs or legal representatives shall have any right, claim
or interest to the said property.
• Mr LMN is in my relationship and has been looking after my aforesaid property and has taken good care of the same on account of
my own personal inability to do so. Out of affection for him, I have made the aforesaid bequest in his favour.
• In all other respects, I confirm the provisions of my Will dated.
• I have made this Codicil in good health and sound mind and without any force, fraud coercion and/or undue influence and with full
knowledge and understanding and no other heirs will be entitled to object to the same.
• In witness whereof I have set and subscribed my hand to this writing at this _____day of 20 .
• SIGNED AND DECLARED by the )
• withinnamed ABC as and for his )
• First Codicil to his last Will and ) (Signature of ABC)
• Testament dated the day of , 20 )
• in the presence of us present at the )
• same time who at his request in )
• his presence and in the presence of )
• each other have hereunto set and )
• subscribed our respective names as )
• (Photograph of ABC) (Thumb Impression of ABC)
• attesting Witnesses:
• 1.
• 2.
Thankyou