A will which is a voluntary posthumous disposition of property needs to fulfill certain requirements so as to be deemed valid in law. These requirements have already been elaborated upon in a post here. The Indian Succession Act is the comprehensive legislation for the law relating to wills in India (except for the Muslim community). However the statutory provisions are silent on the subject of non privileged oral wills which has led to a lot of confusion which this post seeks to address.
A will may be made orally if it is a privileged will (a will which can be made by a member of the armed forces employed in an expedition or engaged in actual warfare). Being placed in exceptional circumstances involving greater uncertainties to life members of the armed forces employed in an expedition or engaged in actual warfare are conferred with the power to make privileged wills. Hence Section 66 of the Indian Succession Act recognizes that they may make a will by word of mouth and declaring their intentions before two witnesses who are present at the same time. The Section also says however that a will made verbally would be null at the expiration of one month after the testator being alive has ceased to be entitled to make a privileged will.
Non privileged wills (all wills that are not privileged wills) are governed by Section 63 of the Act which mandates the need for signatures and attestations thus requiring that wills be in writing. However the distinction made between the ‘execution’ of wills and their ‘making’ in the act indicates something else as well. While Section 63’s title includes the term ‘execution’ Section 66 (which deals with privileged wills) includes ‘mode of making’ and ‘execution’ of wills. Since Section 63 lays down the mode of execution for written wills but isn’t an authority on the creation of wills an argument can be made for the existence of oral wills.
It is highly undesirable to make an oral will and a will should generally be made in writing. On a testator’s death the executor of the will may apply for a probate upon which the court enquires of the heirs of the deceased whether they have objections regarding the same. If there exist no objections then the court can grant a probate (which is essentially a copy of the will certified by the court). The advantage of obtaining a probate is that the genuineness of the will being established all acts of the executor become valid. Amongst the many reasons an oral will should be avoided is that if it is an unprivileged will then it cannot be probated since it cannot comply with Section 63 of the Indian Succession Act.
A person who does want to enforce the will has to prove with the utmost precision the words upon which he relies with every circumstance of time and place. The liberty of action available for mala fide actions by someone propounding an oral will is so obviously evident that the party which relies on the oral will has to bear the burden of proving the legitimacy of the will. The burden of establishing an oral will being a very high one since it needs to be proved strictly on evidence that the court finds satisfactory it is incredibly difficult to establish its contents and get an oral will enforced.
