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This article has been written by Arati Roy pursuing a Diploma in Domestic & International Commercial Arbitration course from Lawsikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

Amongst various ways that the word ‘Will’ is understood, the one which means an instrument by which one gets to exercise his authority even beyond one’s lifetime surely is the most powerful usage of the word. In our quest to live life, we often fail to account for the time when we will live no more. The wealth that we accumulate to secure the lives and comforts of our dear ones will one day be disposed of by the law of the land and if not for will, there would be no means to fairly disburse our wealth to those for whose future we care.

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If not for a will, the person is said to have died intestate, and her/his property devolves upon her/his heir and legal representatives by virtue of the law of the land. 

What is a will

The Indian Succession Act of 1925 (ISA) under Section 2(h) defines it as follows:

“Will” means the legal declaration of the intention of a transfer with respect to his property that she/he desires to carry into effect after her/his death.

A will is an instrument that becomes operative only upon the death of the testator, i.e., the one who has executed the will. Thus, it follows that when a person owning a certain property wants to enjoy that property during her/his lifetime and further bequeaths the same to some specific person/s in a specific manner, she/he has the option of doing so in a way that would be enforceable.

What can be the subject-matter of a will 

All property, whether tangible or intangible, that is owned by the testator and is transferable can be the subject matter of a will. This includes one’s share of ancestral property. Tangible property refers to physical objects that can be seen and touched, such as vehicles, furniture, and jewellery. Intangible property, on the other hand, refers to non-physical assets, such as stocks, bonds, and intellectual property. Both types of property can be devised to beneficiaries through a will.

Ancestral property holds special significance in many cultures and legal systems. It refers to property that has been passed down from generation to generation within a family. In some jurisdictions, ancestral property may be subject to specific rules and regulations regarding its inheritance and disposition. However, unless there are legal restrictions or customary practices that prohibit it, a person’s share of ancestral property can generally be included in their will and distributed according to their wishes.

It is important to note that the laws governing the disposition of property will vary from one jurisdiction to another. Therefore, it is advisable to consult with a qualified legal professional to ensure that the will is drafted in accordance with the applicable laws and that the testator’s wishes are carried out as intended.

Who need not make a will

If the person in question has no property, either moveable or immovable, nor expects to earn any during his lifetime, there is no question of having to make provisions for its devolution.

If the person wishes that the property, whether movable or immovable, devolves upon his/her heirs and legal representatives as per the provisions of the succession laws that he/she is governed by.

Who cannot make a will 

  • A person who has not attained a majority.
  • A person who is of unsound mind or, by reason of any disability, unable to comprehend the substance of the will.

Who can be a witness

Although some personal laws like Hindu, Buddhist, Sikh, Jain or Mohammedan laws allow even legatees to be attesting witnesses, it is highly recommended that where there are options available, legatees may not be made a witness.

Note: If the will is being drawn at the behest of a Parsi or a Christian testator, the witnesses cannot be legatees.

Checklist for a valid will

The checkpoints that need to be observed while making a valid, enforceable (unprivileged) will be enumerated as follows:

  • The testator must be a major and have a sound mind. To ensure this, it is recommended that a doctor’s certificate accompany the will. 

In the landmark case of Kishan Singh vs. Nichahattar Singh (1983), the court delved into the complex legal issue of testamentary capacity and its relation to physical and mental impairments. The case centred around the validity of a will executed by an individual suffering from cancer of the back and head, as well as being deaf and dumb.

The court recognised that the testator’s physical and sensory impairments raised questions about their ability to comprehend the nature and consequences of their actions when executing the will. However, the court carefully examined the evidence presented and found that, despite the testator’s disabilities, they possessed sufficient mental capacity to make a valid will.

The court reasoned that the testator’s ability to communicate and understand through sign language, along with other forms of nonverbal communication, demonstrated a level of comprehension that was adequate for testamentary purposes. The court also considered the testator’s interactions with family members, friends, and medical professionals, finding that they exhibited a consistent understanding of their property and wishes.

The court’s decision in this case highlighted the importance of assessing testamentary capacity on an individual basis, taking into account the specific circumstances and abilities of the testator. It established the principle that physical and sensory impairments, while potentially affecting communication and understanding, do not automatically render a person incapable of making a valid will.

The case of Kishan Singh vs. Nichahattar Singh serves as a precedent in Indian law, guiding future determinations of testamentary capacity in cases involving individuals with disabilities. It underscores the need for a balanced and individualised approach, ensuring that the rights and wishes of all individuals are protected in the context of estate planning.

  • The property that is the subject matter of the bequeath should be her/his own property, which she has/would have a right to transfer if alive. 
  • The manner of bequeathing, as desired by the testator, should be reduced to writing. The writing should clearly and unambiguously instruct the manner of bequeath. It is further recommended that the rationale of distribution/bequeath be also narrated.  
  • The testator has to sign or affix his marks to the will (or, in certain exceptional cases, it may be signed by some other person in the presence and under the direction of the testator) in a way that it shall appear that it was intended to give effect to the instrument of the will. 
  • The will so made needs to be attested by two or more witnesses who have seen the testator sign or affix his mark to the will.

Section 63 of the ISA provides in detail the rules to be followed for the execution of unprivileged wills, which are ordinarily the ones that an ordinary person executes. 

The other kind of will is the privileged will governed by Section 65 of the ISA, which is meant to govern a testator who, by reason of expedition or being engaged in actual warfare, is entitled to bequeathing property by oral will.

Multiple wills by a testator

As observed in Vimla L. Rajani & Anr vs. Asha Kanayalal Bajaj & Anr (2012). It is permissible for a person to make two or more distinct wills or codicils for different parts of his property. The testator may execute different wills with respect to different properties. As long as each of the wills can be read independently of each other and whose contents do not affect each other, each such will is a valid will and can be enforced upon the death of the testator.

In cases where the subject matter of the wills is the same property, the will of a later date will be enforceable, provided the intention to revoke the former will is clear. Therefore, a general revocatory clause revoking all the former wills and codicils is incorporated in wills and codicils.

What is a codicil

Where a will is already executed and the testator wishes to make any changes by way of addition, deletion, or alteration, the same may be done by way of executing another instrument following the same checklist as recommended for execution of the will, except that there will be a mention of the previous will in the context whereof the changes are proposed to be incorporated. Once executed, the codicil has to be read together with the will, in respect of which it is said to be the codicil. Thus, in cases where the will is revoked and the codicil is still operative, the contents of the revoked will may still be relevant for the purpose of reading and giving meaning to the codicil. 

Revocation of will

The testator at any time may revoke the will by writing a declaration of intention to revoke, in which case such writing shall be signed by the testator and attested by two witnesses who acknowledge its execution before them. Alternatively, a will may be revoked by burning, tearing, or destroying it either by the testator or by a third person in the presence of the testator. (Note: In case where such act of burning, tearing, or destroying the will is done by a third person, such act of burning, tearing, or destroying the will  must take place in the presence of the testator and must be under his instructions.)

Status of codicil when the will is revoked

A codicil shall be deemed to be revoked only if it can be shown that the testator, while revoking the will, also intended to revoke the codicil.

Registration of will                                          

The registration of a will, while not legally required, is strongly recommended for several compelling reasons. By registering a will with the appropriate authorities, such as a court or government agency, it gains increased legal standing and validity. This process involves the official recording and authentication of the document, making it more difficult to challenge or contest its authenticity in the future.

Enhanced legal recognition

  • A registered will is recognised as a legal document and is given greater weight in court.
  • It provides a higher level of proof of the testator’s intentions and wishes.

Protection against fraud and undue influence

  • Registration creates a public record of the will’s existence, making it more difficult for unscrupulous individuals to alter, forge, or destroy the document.
  • It serves as an additional safeguard against fraud and undue influence, ensuring that the testator’s true wishes are respected.

Facilitated probate process

  • A registered will simplifies the probate process, which is the legal procedure for validating a will and distributing the testator’s assets.
  • Since the will’s authenticity and validity have already been established, it reduces the likelihood of legal challenges and complications during probate.

Streamlined transfer of assets

  • A registered will enables the smooth and efficient transfer of assets to the intended beneficiaries.
  • It provides clear and legally binding instructions regarding the distribution of the testator’s property, reducing delays and disputes among heirs.

Peace of mind for testators and beneficiaries

  • Registering a will gives testators peace of mind, knowing that their final wishes are properly documented and legally enforceable.
  • It also provides comfort to beneficiaries, who can be confident that the testator’s intentions will be carried out as intended.

Adherence to legal requirements

  • While registration may not be mandatory in all jurisdictions, complying with this formality demonstrates the testator’s adherence to legal requirements and their commitment to ensuring the validity of their will.

Procedure for enforcement of will

In cases where an executor has been appointed in the will, such executor may make an application before the appropriate court for the issuance of a probate. 

Probate is defined under Section 2(f) of the Indian Succession Act. It 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.  

Chapter XXVI of the Bombay High Court (Original Side) Rules deals with the Testamentary and Intestate Jurisdiction of the Bombay High Court. Acts of different states provide similar provisions that govern their respective States. 

Rule 374 of the Bombay High Court (Original Side) Rules lays down the procedure for obtaining probate by submitting a petition, along with:

  • copy of the last will (and codicil, if any); 
  • where the will is not in English, an English translation of the will;
  • The death certificate of the testator (and also identity and last residence proofs);
  • a schedule of the property and credits which have or are likely to come to the petitioner’s hands;
  • a schedule showing debts of the deceased; 
  • a schedule of the property, if any, held by the deceased in trust for another and not beneficially or with general power to confer a beneficial interest.

The procedure for enforcement of a will involves several steps to ensure the proper execution and distribution of the deceased’s assets according to their wishes.

  1. Probate process:
    • The will must go through the probate process, which is the legal procedure of authenticating the will and administering the estate.
    • The court appoints an executor, who is responsible for carrying out the terms of the will.
    • The executor files the will with the probate court, along with a petition for probate.
    • The court reviews the will to determine its validity, including whether it meets the legal requirements and was executed properly.
    • The court issues an order admitting the will to probate, which officially recognizes it as a legal document.
  2. Notification of heirs and beneficiaries:
    • The executor notifies the heirs (family members and other individuals named in the will) and beneficiaries (those who inherit property or assets from the will) of the deceased’s passing and the existence of the will.
    • The executor provides copies of the will to the heirs and beneficiaries or their legal representatives.
  3. Inventory and valuation of assets:
    • The executor creates an inventory of all the deceased’s assets, including real estate, bank accounts, investments, personal property, and any debts or liabilities.
    • The executor determines the value of each asset, either through appraisals or established market prices.
  4. Payment of debts and taxes:
    • The executor pays off any outstanding debts and taxes owed by the deceased.
    • Priority is given to secured debts (such as mortgages) and taxes, followed by unsecured debts (such as credit card balances).
  5. Distribution of assets:
    • After debts and taxes are paid, the executor distributes the remaining assets to the beneficiaries according to the terms of the will.
    • The executor may use cash, transfer titles, or distribute specific assets as outlined in the will.
    • If there are any disputes about the distribution, the executor may seek guidance from the prrobate court.
  6. Accounting and reporting:
    • The executor is required to keep detailed records of all financial transactions related to the estate.
    • Periodic accounting reports are provided to the beneficiaries and probate court.
  7. Closing of the estate:
    • When all debts, taxes, and distributions have been handled, the executor files a final accounting with the probate court.
    • The court reviews the accounting and, if satisfied, issues an order closing the estate.
  8. Post-probate matters:
    • After the estate is closed, the executor may assist beneficiaries with transferring assets into their own names, updating titles, and handling any ongoing legal or financial matters related to the inheritance.

It’s important to note that the procedure for enforcement of a will may vary depending on the specific circumstances, local laws, and the complexity of the estate. Seeking legal advice from an estate attorney is recommended to ensure compliance with legal requirements and proper administration of the estate.

Letter of administration

In cases where an executor has not been nominated under the will or where executor/s though nominated, have expressed their disinterest in acting as the executor of the will, the proponent of the will may apply for the letters of administration  in the same manner as the executor could have applied for probate.

Whether probate or letters of administration, the court will only, upon verifying the claims, grant a[ certificate thereto. A letter of administration can also be applied for in the event of an intestate death. It is this probate or letter of administration which lends the executor/ administrator the right to legally deal with the property in question 

Here is a simple format of a will for ready reference: https://docs.google.com/document/d/1mTkDx8_iULYbQ1HA5Wa4Qfyjbfj9z1VUAzte8gU5k/edit?usp=sharing

Conclusion

Anyone who owns any valuable property and is desirous of ensuring that the same devolves in a specific way, not being the same as it would if he should die intestate, may do so by drawing a will in a manner that expresses his such desire. Whether by reason of estate planning, differentiating a nominee from the beneficiary, choosing a guardian for minor beneficiaries, or donating for some social cause, a will is the way to go. Clearer the terms of the will, less hassle for those who inherit. 

References

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