This article is written by Shiraz Rajiv Bhatia, pursuing a Certificate Course in Real Estate Laws from LawSikho.

 

We have been hearing about the term “Will” or “Vasiyat” (in Hindi), in newspapers, books, movies, etc. But what exactly does this term “Will” mean? And what are the legal aspects of a Will? What happens to the assets/ properties of a person if he/she dies “intestate” which means, without making a Will? And how are our courts and judiciary to interpret a Will if it is challenged or the authenticity of a Will itself is in question? 

An introduction to Wills

What is a “Will”?

A Will is a testament, a legal document, by which a person, declares his/her intention or expresses his/her wishes, decision, (Will) as to how his/her wealth, assets, and properties (moveable or immoveable, tangible or intangible, whatever the case may be) is to be distributed after his/her death, and usually names one or more persons as the Executor, to manage the estate or the properties as willed in the Will until it is finally distributed to his/her heirs as mentioned in the Will.  

Under The Indian Succession Act, 1925, Section 2(h) provides for the meaning of the term Will as the legal declaration of the intention of a person concerning his/her property/assets, which he/she desires to take effect after his/her death.

A Will has the following essential characteristics:

1. The intention of the Will maker must be to take effect after his/her death.
2. A Will is a form of the legal declaration of such intentions.
3. The declaration must involve the manner of disposal of the assets/properties.
4. A Will may be revoked or changed by the Will maker at any time prior to his/her death. 

Types of Wills and its forms

There is no prescribed form for a Will to be written as it can be handwritten, also called holographic wills, or typed on any document or a normal paper and not just the stamp paper. 

One can also make an Oral Will where a Will maker speaks his/her wishes before witnesses. Lacking a written record, or at least one prepared by the Will maker, oral wills are not widely recognized by courts. 

There can also be a Mutual Will or a Joint Will that distributes the property of two or more people, usually made by a married couple.

Who can make a Will?

Section 59 of the Indian Succession Act provides that every person who is of sound mind and is not a minor can make a Will, which means anyone who is of 18 years and is of a sound stable mind. 

Furthermore, the section states that a person who is usually of an unsound or unstable mind may make a Will during the period of the soundness of his/her mind. The same section also disallows a person from making a Will when he/she is in a state of intoxication or illness which makes him/her incompetent or incapable of understanding the consequences of his/her act.

Making of a Will

1. First and foremost, all the above-mentioned essentials of a Will need to be adhered to. 
2. It is prudent to consult a lawyer before drafting a Will. A Will can either be drawn by the ill maker themselves or through his/her lawyer.
3. A Will is executed by ensuring the signature of the Will maker in the attendance of the two witnesses and their signatures as well.
4. It would be favorable if a Will is appropriately stamped and registered with the registrar as it helps in ensuring proper execution and deters disputes over it. 

What all should be included in a Will? 

The following details are must be included while drafting a Will:

• Information of the Will maker- The name, age, address, and other information of the Will maker shall facilitate in identifying who is making the will and when is it being drawn.
• Declaration – Will maker must declare that he/she is of sound mind and free of any coercion while drawing the Will. 
• Particulars of the Beneficiary – The particulars of who shall be benefiting out of this Will and to whom the assets/properties shall be divided should be given as their name, age, address, and relation to the Will maker. 
• The Executor of the Will – It is essential to appoint an Executor who would make sure that the Will is carried out according to the instructions provided by the Will maker. The name, age, address, and relation to the Will maker should be specified as well.
• Details of property and assets – It is important to list out all the details of the assets and properties that Will maker has, and which are the ones that shall be covered in the Will. He/she should also list out any particulars and identification details about the said assets that are a subject matter of the Will. 
• Division of Share – The shares for each of the beneficiaries on the property or the specifics shall be listed in full detail. If in case any asset is to be given to a minor, then a guardian for the minor should also be listed in the Will.
• Specific Instructions – The Will maker should give instructions in terms of executing the Will. In case of specific execution, special directions/guidelines need to be provided by the Will maker in the Will.
• Witness – There should be a signature by the Will maker in the presence of at least two witnesses. The witnesses do not necessarily need to know the particulars of the Will and neither can they be the beneficiaries in the same Will. They just have to verify that the signature by the Will maker was done in their presence, before them.
• Signature – The Will maker should sign with the date on the Will after the last statement.
• Initial each page – After this, the date and place must also be written at the bottom of the Will. Every page of the will needs to be signed by the Will maker and the witnesses. Any correction made on the will must also be countersigned by the Will maker and the witnesses.
• Storing the Will: Make sure that the Will is stored in a safe place. If copies are made, they should be stored separately from the original will. 

Fig. 1. Important Details that should be included in a Will

Some of the common blunders that occur while making a Will

• Steer clear of using complex or technical legal terms. Some people like using legal vocabulary while drafting wills. Unless the terms have been used correctly, this can be very confusing and often the layman is left baffled by what is written and can lead to misinterpretations. So, to avoid any misunderstanding, make sure the language used for drafting the will is simple, specific, and uncomplicated.
• Avoid allotting tenancy rights in the Wills. Generally, some people living as tenants in the same property for many generations, often pass on their tenancy in their Will, although it is not legal to do so. This is a common mistake and there are many cases pending before the courts regarding this issue. One cannot state in their will that a relative should become the tenant of the property, since the Will maker as a tenant, does not have any ownership right to the property, and right of tenancy is restricted to the landlord and the tenant and therefore non-transferable.
• Avoid making vague references in the Will with regards to the property or the beneficiary of the Will. For instance, “My property in Pune shall be allotted to my elder daughter”, here “property in Pune” is a vague description of the property as there may be many properties in Pune or even in the case of “Elder Daughter” the Will maker may have 3 daughters and elder daughter could mean the eldest of all or could mean elder of the youngest daughter. Hence, clarity in the description of the property and the beneficiary of the Will is very important. Even in the case of jewelry, a proper description of particular jewelry has to be given; if possible attaching a photo of the jewelry in the Will with makings is highly recommended.
• A beneficiary in the Will should not be made a witness to the same Will. This can help authentication of the Will be fair, unbiased and not under any duress. Witnesses should be chosen carefully and of good character and standing in society and also such ones who are likely to be able to survive the Will maker.
• Do not forget to put the date on the Will as it will help identify the last Will in case there are many prior Wills. Many people have made many wills over their lifetime as and when the circumstances change. In such a scenario if the wills are not dated there can be confusion with regards to the last will and may cause disagreements and disputes amongst the beneficiaries leading them to the doors of the courts.

Execution of a Registered Will in India

For starting the process of execution of a registered Will in India, a Probate needs to be obtained from the competent court. A Probate of Will is a legal certification of the genuineness or authentication of the Will. When the competent court grants ‘letters of administration’, which is annexed with the Will, then it is said to be ‘grant of probate’. 

A Probate can be obtained by filing a petition before the competent court along with a schedule of the property and annexing a copy of the Will for which a probate has to be obtained, to the petition as well. It should be specifically prayed to the competent court to grant probate to carry out the intention of the Will maker. 

• Probate means the copy of a Will, which is ‘certified’ under the seal of a competent court, with a grant of administration to the estate of the Will maker. It is the conclusive evidence about the due execution and validity of the Will, and about the testamentary capacity of the Will maker.

For an un-registered Will, usually the executor would have one copy of the Will who will call upon the legal heirs of the Will maker to a joint meeting and read out the Will and take steps to execute the Will as per the Will maker’s wishes.

Grounds for challenging a Will iIn India – Registered or Unregistered

A will irrespective of its registration can be challenged on the following grounds: 

1. Presence of coercion, fraud, or undue influence- There needs to be a presence of these elements to establish that the Will was not drafted with a clear intent and the Will maker was under undue pressure and manipulation to make it as such.
2. Presence of a suspicious nature- Presence of certain elements in the Will which could give a reasonable understanding that there was some indiscretion with it.
3. Lack of testamentary intention or capacity- This means that the Will may not show an intention on behalf of the Will maker to carry out the Will. Lack of testamentary capacity implies that the Will that Will maker might not be of sound and reasonable mind while making the Will.
4. Lack of proper execution- If the signature of the Will maker along with the signatures of the two witnesses are not present then it can be a ground to challenge the legitimacy of the Will.
5. Absence of knowledge- If the Will maker did not have knowledge or information of signing the Will then it can be taken to be a ground for challenging the genuineness of the Will.

Procedure for challenging a Will

A Will can be challenged in a court of law under the above-mentioned grounds.

Intestate Succession:

Unfortunately, in India, many do not consider making Wills. It may be due to various reasons or more due to sear disregard, but a death intestate, is a situation that exists merely on account of the lack of a simple declaration. Dying intestate, could create uncertainty and frustration amongst the legal heirs and can lead to legal disputes between family members. In case such a dispute arises, the law has laid out rules for members of different religions, as specified in the Indian Succession Act, 1925, Hindu Succession Act, 1956, and by Shariat law.

Interpretation of the Wills

Section 74 of the Indian Succession Act, 1925 provides that a Will can be made in any form or any language; no technical wordings or forms are needed. Any lack of technical wordings or accuracy in grammar will make no difference as long as the intention of the Will maker is clear. 

Under the provisions of Chapter IV of the Indian Succession Act, 1925, dealing with the constructions of wills, some of the principles of interpretation of Wills that are statutorily recognized need special notice. 

• Section 84 provides that if a clause is susceptible of two meanings, according to one of which it has some effect and according to the other it can have none, the former shall be preferred.

• Section 85 provides that no part of a Will shall be rejected as deficient of meaning if it is possible to put a reasonable construction on the same. 

• Section 86 provides that if the same word occurs in different parts of the same Will, they shall be taken to have been used everywhere in the same sense unless a different intention appears. 
• Section 87 makes it clear that the intention of the Will maker shall not be set aside merely because it cannot take effect to the full extent, and that effect is to be given to it as far as possible. 
• Section 88 provides that if there are two clauses of gift in a Will, which are contradictory, so that they cannot possibly stand together, the last shall prevail.

Even after that, sometimes when executors come across clauses in Wills which are vague or unclear or could be interpreted in more than one way. It is of course imperative that these issues are resolved properly to make sure that the Will maker’s wishes or intentions are carried out.

It is essential because these types of problems can have major consequences for the beneficiaries, and could create further issues for the executor of the Will. Any time an executor has a concern about how to interpret any clause of a Will, legal guidance is essential.

In many cases, the courts have decided that a will has to be interpreted as a whole document to balance the conflicting provisions. 

• In Pearey Lal’s case the honorable Supreme Court had stipulated certain guiding principles in the matter of interpretation of Wills:

1. The intention of the Will maker by reading the will as a whole and if possible, such construction as would give to every expression some effect rather than that which could make any of the expression inoperative must be accepted; 
2. Another rule is that the words occurring more than once in a Will shall be presumed to be used always in the same sense unless a contrary intention appears from the Will; 
3. All parts of a Will should be construed in relation to each other; 
4. The Court will look at the circumstances under which the Will maker makes his Will, such as the state of his property, of his family and the like; 
5. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the Will maker; 
6. Where one of the two reasonable constructions would lead to intestacy, that one should be discarded in favour of a construction which does not create any such interruption.

• In one of the Supreme Court judgment, Sadaram Suryanarayana & Anr vs Kalla Surya Kantham & Anr, the hon’ble Court further clarified that the Courts would as far as possible place an interpretation that would avoid any part of a Will becoming redundant. It will interpret a Will to give effect to the intention of the Will maker as far as the same is possible. Each document has to be interpreted in the peculiar circumstances in which the same has been executed and keeping in view the language used by the Will maker. That indeed is the requirement of Section 82 of the Indian Succession Act, 1925, it provides that meaning of any clause in a Will must be collected from the entire instrument and all parts shall be construed with reference to each other.
• In Navneet Lal Alias Rangi vs Gokul and Ors., the honorable Supreme Court held that the court should consider the surrounding circumstances, the position of the Will maker, his family relationships, the probability that he would use words in a particular sense. However, it also held that these factors are merely an aid in ascertaining the intention of the Will maker. The Court cannot speculate what the Will maker might have intended to write. The Court can only interpret as per the express or implied intention of the Will Maker expressed in the Will. It cannot recreate or make a Will for the Will maker.
• The main duty of the court is to establish the wishes/intention of the Will maker from the Will itself by plain reading of the Will. The honorable Supreme Court in Bhura vs Kashi Ram held that construction that would advance the intention of the Will maker has to be favored and as far as possible effect is to be given to the Will maker’s intention unless it is contrary to law. The court should place itself in the shoes of the Will maker. 

To adopt this particular approach in cases of interpretation of wills generally would vest courts with unwarranted caution and nearly persuade them to disregard the objective that, in every wills case, discerning and executing the Will maker’s intention is the main and paramount concern.

Conclusion

COVID-19 has turned our world upside down. In times of such pandemic, it is strongly advised to make a Will in any form one may wish either oral (least recommended) or hand written or typed. Take legal advice, if need be. It is time to secure, safeguard and protect our loved ones and their future, which have taken paramount importance in these troubled and dark times. 

It is always recommended to use simple language. It has long been acknowledged that interpretation is to seek out for the real intent conveyed by the language of a legal instrument and that construction, by contrast, is the obligation of supposed intent upon the instrument when interpretation has failed. All details of the beneficiaries should also be mentioned. Detailed and meticulous description of all the assets and properties to be bequeathed should be provided in the Will. 

If the Will maker intends to appoint the executor(s) who, after the death of the Will maker, will be responsible to ensure that assets/properties are distributed as per the Will, then such intention to appoint the executor(s) and the details thereof should also be clearly mentioned in the Will. Also keep in mind that the executor(s) and the witnesses are of a good standing in society and in good health and likely to survive the Will maker.

In case the Will is challenged in the court of law, the above cautions will facilitate good backing for the will and the intention of the Will maker can be carried out efficiently.

References

1. The Indian Succession Act, 1925
2. Richard F. Storrow, Judicial Discretion and the Disappearing Distinction between Will Interpretation and Construction, 56 Case W. Res. L. Rev. 65 (2005) https://scholarlycommons.law.case.edu/caselrev/vol56/iss1/4
3. https://www.myadvo.in/blog/how-to-make-and-register-a-will-in-india/
4. Case laws from: https://www.casemine.com/judgement/in/

1. Pearey Lal vs. Rameshwar Das, 1963 AIR 1703, 1963 SCR Supl. (2) 834
2. Sadaram Suryanarayana & Anr v.s Kalla Surya Kantham & Anr, 2010 AIR SCW 6721
3. Navneet Lal Alias Rangi vs. Gokul and Ors., 1976 AIR 794, 1976 SCR (2) 924
4. Bhura vs Kashi Ram, 1994 AIR 1202, 1994 SCR (1) 16

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