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This article has been written by Ms. Nikara Liesha Fernandez from the School of Law, Christ University, Bangalore. This article deals with an exhaustive overview of the system of wills in India as well as the evolution of the same from a global perspective. 

Introduction

Wills in India are governed primarily by the Indian Succession Act, 1925 (ISA) to all individuals except Muslims whose matters of inheritance are governed by Mohammedan law (Hanafi law). Although Hindus rely upon the Hindu Succession Act, 1956 for matters of inheritance (especially in the case of intestate succession matters), certain provisions of the ISA are also applicable to them. Hindus, in this case, include Jains, Buddhists and Sikhs as well. Any individuals who enter into the institution of marriage under the Special Marriage Act, 1954 are bound by the ISA in matters of inheritance and succession. Other religious groups such as Christians, Parsis and Jews rely solely on the ISA for the matter of wills. 

Wills, as defined under Section 2(h) of the ISA is ‘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.’ Thus, wills are important documents which unlike other legal documents like Gift and Sale deeds have relatively simpler language and can be made on a normal sheet of paper such that there is no involvement of stamp duty charges.

Need for wills

There is a common misconception that wills are only made by individuals during their later stages in life or as they age and are in bad health. The urgency of it is evident as wills provide for the wishes of the person writing it to be carried out in a systematic manner in accordance with the individual’s wishes in his absence. This however is not necessarily true. Any individual above 18 years of age who is of sound mind can write a will. Multiple wills can be written by an individual during his/her lifetime and the will which is taken into consideration in the event of his/her death is the last will to be written by him/her. 

The most common belongings of an individual whose distribution is governed by his/her will are personal as well as real property. Corporate persons, however, due to the belief that they have perpetual existence do not come under the scope of wills and rather have separate laws which decide their winding up, reorganization and closure. 

Wills need to be as clear as possible in order to provide for each and every one of an individual’s assets to avoid conflict between the family members and other individuals having claims to a deceased’s assets. 

Another use of wills that is not commonly discussed is that of tracing family lineage for the purpose of genealogy. It is interesting to note that in 1705, in the United States of America, even slaves formed a part of the contents of an individual’s will as they were considered to be the personal property of their owners.  

Wills have been around since time immemorial and a lot of their practices and contents have remained the same even to date. In order to properly understand the evolutionary history of wills, it is necessary to establish the meanings of certain essential terms relating to the same. 

Writing a will also reduces the inheritance tax payable on the value of the property and money left behind by the deceased.

Terminologies relating to the concept of wills

Important terms relating to wills

  1. Testator

This is the term that refers to the individual who makes the will. Testator is the term used in the case of a man and Testatrix is the term used in the case of a woman. The testator’s signature, or any other mark of identification in case he/she is unable to sign due to any handicap, is required preferably at the end of the will

  1. Beneficiary

This term refers to the person to whom the testator wills his property and assets in the will. There can be multiple beneficiaries named in a person’s will regardless of whether they are related to the testator by blood or not. 

  1. Executor

This refers to the person whom the testator appoints to carry out the provisions of his/her will in the event of his/her death. The beneficiary of a will can also be the executor of the same. 

  1. Attestation and witnesses

Attestation is the process by which two or more individuals (as mandated by the law) physically witness the testator writing his/her will and whose signatures are also required at the end of the will. The witness of a will however, cannot be a beneficiary of the same. 

  1. Testamentary succession

This type of succession is that by which an individual inherits a deceased individual’s assets in accordance with the provisions of the latter’s will. 

Important terms in the absence of a will 

  1. Administrator

This term refers to the person who is appointed by a competent authority to play the role of the executor when there has been no individual already appointed as the same by the deceased individual, prior to his/her death.

  1. Intestate succession

This type of succession occurs when an individual dies without having written a will distributing the property and assets under his/her ownership. In this scenario, the distribution of property occurs once the claims are brought forward by the relatives/other individuals who have an interest in the deceased’s property who state their relationship to the deceased through the letters of administration filed in court. 

Other important terms and principles relating to wills

  1. Codicil

This is an instrument that supplements the original will by way of adding, explaining, altering or modifying the provisions of the same. 

  1. Probates 

These are a means of proving the validity of a will by way of its certification under seal by a court exercising competent jurisdiction. It grants the rights of administration to an individual of the testator’s estate. Probates are mostly optional save for the jurisdictions of High Courts in the erstwhile presidency towns of Mumbai, Kolkata and Chennai. 

Types of wills

Joint wills and Mutual wills

Joint wills are written on a single piece of paper where two or more testators dispose of the property that is jointly or separately held by them to the same or different beneficiaries/legatees. Mutual wills are made by two testators who confer mutual benefits on each other. This is mostly taken on by husband and wife however, in the event of the death of one of them, the other takes undue advantage of the same, it becomes irrevocable. They are also known as reciprocal wills. The case of Kuppuswami Raja And Anr. vs Perumal Raja And Ors. (1963) dealt with whether the will in question was a mutual will or a joint will. The Madras High Court ruled that ‘a joint mutual Will becomes irrevocable on the death of one of the testators if the survivor had received benefits under the mutual Will, and that there need not be a specific contract prohibiting revocation when the arrangement takes the form of not two simultaneous mutual Wills but one single document.’

Conditional wills

These wills come into effect only in the event of the happening of a particular condition. These wills are also known as contingent wills. The concept of conditional wills has been elaborated upon in-depth by the Kerala High Court in the case of Sridevi Amma And Ors. vs Venkitaparasurama Ayyan And Ors. (1959) wherein it was held that importance must especially be given to the language and surrounding circumstances of such wills. It is according to these factors that the courts can decide whether a will is valid or whether it is rendered inoperative because the condition or contingency failed to happen.

Privileged wills

These wills form a special part of the ISA and differ from regular wills which are known as ‘underprivileged wills’. As it is essential that wills be made in writing, special wills negate this necessity in the cases of soldiers, airmen or mariners when they are engaged in actual service and acts of warfare. In such cases, even an oral or verbal will is permissible under the law. Other conditions with regard to the process by which privileged wills are to be made are illustrated under Section 65 and Section 66  of the ISA and the same has been elaborately discussed by the Delhi High Court in the case of Goutam Bhadra and Ors. vs. Gouri Bhadra and Ors. (2014)  Section 63 of the Act similarly, deals with unprivileged wills. 

Handwritten wills

These are the most common type of wills and are also known as holographic wills. The benefit of these wills is that they do not require any witnesses. The negative part of this will, however, is that the courts can have issues while deciphering the deceased’s handwriting. In the case of Sh. Rama Kant Chaturvedi v. Sh. Mithlesh Chandra Chaturvedi (2001) the Delhi High Court came to the conclusion that in addition to a holographic will automatically having a better standing in a court of law than an oral one, the presence of witnesses further adds weightage to the legitimacy of the will. 

Formal wills

These are the wills that are the safest bet to follow. They are written in the presence of witnesses by a person who has attained majority and is of sound mind. 

Statutory wills

These are wills that are drafted by lawyers in the format prescribed by statutory law. The con of these wills is that it is standardized in form and cannot be modified by an individual to suit one’s personal circumstances.

Self-proving will

These wills are required to be notarized or must contain a self-proving affidavit attached to the will. 

Advanced Medical Directives (AMD or Living will)

These wills have become common in modern times. Rather than dealing with the division of the property of an individual, these wills contain the wishes of an individual with regard to the medical treatment desired by him/her in the event of him/her falling terminally ill and being unable to communicate the same to the medical staff. 

Laws governing wills in India

Under Hindu law- The Hindu Succession Act, 1956

This Act is applicable to all Hindus mainly to aid in the distribution of their property and assets in cases of intestate succession. The aim of the Act was to ‘amend and codify’ the law relating to the same. Hindus, under this Act include individuals belonging to all of the various forms of Hinduism including ‘a Virashaiva, a Lingayat, a follower of Brahmo, Prarthana or Arya Samaj, Buddhists, Jains and Sikhs.’

The order of succession or devolution of property for an individual who has died intestate according to the above Act is as follows-

  1. For male Hindus- There exist four classes of legal heirs
  • Class I heirs include the wife, children, mother, children of the predeceased children, widow of the predeceased son and a few other such relatives. The property is distributed in an equal share to the widow, mother and each of the children respectively.   
  • Class II heirs are those individuals who are eligible to inherit the property of the deceased in the absence of any Class I heirs. 
  • Class III and IV heirs are those individuals who inherit the property of the deceased in the absence of class II heirs. They are divided into agnates and cognates. Agnates are the relations through the male only who are the class III heirs. In the absence of the agnates, the cognates (the relations through the female only) who are the class IV heirs inherit the property. 
  1. For female Hindus- 
  • Class I relatives are the husband, children and children of any predeceased children. 
  • Class II heirs are the heirs of the husband
  • Class III heirs are the parents of the deceased, if alive
  • If any property is inherited by a Hindu from her parents, the same would revert back to the father’s legal heirs in case the female dies without a child.
  1. Other circumstances-

In cases where more than one person dies simultaneously in certain natural calamities or in a plane crash, car crash, etc. and it is not possible to determine the exact time of death of the individuals, it is to be presumed that the older individual died first. 

A person found guilty of murder is not eligible to inherit any property according to the law, however his/her heirs are eligible to inherit the same. 

Under Islamic or Mohammedan law

Under Muslim law, a will is known as ‘Wasiyat’ which is defined as ‘a moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property.’ Different Muslim sects follow different personal laws within the Mohammedan law itself in dealing with matters of inheritance and succession which are not codified. For example, the law governing succession in the case of Shia and Sunni Muslims differ with the latter following Hanafi law according to which the successors of the deceased individuals are entitled to a maximum of a one-third share of the property of the deceased after accommodating the costs for the funeral expenses, paying off the outstanding wages of domestic servants, debts of the deceased, etc. 

The three classes of heirs under Muslim law are-

  • Sharers- the legal heirs who are entitled to a share in the deceased’s estate 
  • Residuaries- the individuals who inherit any remaining property after the sharers claim their share. 
  • Distant kindred- The individuals who inherit the property and shares in the absence of sharers or residuaries

Another point to note is that under Muslim law, even oral oaths are permitted. It is also not necessary that the will be signed and if it is signed, then it need not be attested. 

According to Section 3 of the Shariat Act, 1927, the Khoja and Sunni Bohra Muslims of Gujarat are entitled to make testamentary dispositions of their whole property rather than a one-third share unless they make a statutory declaration under the Act. A Muslim can, however, transfer his entire property through a gift.

Under Christian law

The widow or widower of the deceased is entitled to inherit a one-third share of the property, the remainder of which is distributed among the lineal descendants of the deceased wherein each child, or in case of a predeceased child, his/her children, get equal shares of the property. In the absence of the latter, the widow or widower inherits half the property and the remainder is distributed to the kindred individuals (other relatives of the deceased).  Among the kindred individuals, the father gets the first preference in the absence of which, or in case the latter is predeceased, the mother followed by the brother, sister and their children inherit the property equally. 

In addition to the above, Christians follow the ISA entirely in matters of inheritance and succession. 

Individuals incapable of making wills

In addition to only individuals who are of sound mind and who have attained majority (18 years of age or 21 years of age in the case of an individual under guardianship), Section 59 of the ISA specifies those individuals who are incapable of making wills which can be recognized by law. 

In essence, as long as the testator is able to comprehend his actions through the will and the effects of the same, the will can be considered to be valid. Thus even individuals who are deaf and dumb are eligible to write wills. People who are intoxicated or suffer from any illness by which they are unable to comprehend what they are doing are not eligible to make a will; however, individuals who are ordinarily insane may make a will that is legally tenable during an interval when he/she is of sound mind. 

Factors rendering wills invalid

Section 61 of the ISA states that wills which have been signed by testators who are under coercion, fraud or importunity such that he/she is deprived of his/her own free will or agency are void in the eyes of law. 

Conditions under which a will becomes invalid

  1. If the will is not attested by at least two witnesses it becomes invalid. In the case of Narinder Singh Rao v. Avm Mahinder Singh Rao & Ors. (2013), it was held that if the will is signed by only a single witness, it cannot be considered to be valid in the eyes of the law. This principle was previously laid down by the Supreme Court in the case of Gopal Swaroop v. Krishna Murari Mangal & Ors. (2003).  
  2. When the will is not signed by a testator, it is considered to be invalid. In the absence of a signature, even a thumb impression is sufficient to validate a will.
  3. When the will has not been dated it is considered to be void. In this case, even if the will has been attested by two witnesses, and signed by the testator, it stands to be void if it does not contain the date on which the will was signed.  

Origin of wills in the global context

The desire to protect one’s property and ensure the preservation of the same for the generations to follow in order to preserve the family legacy and name has been a matter of pride for affluent families all across the world and particularly in Europe where codified provisions were established by law to preserve the same. 

Some historical evidence suggesting the practice of wills are as follows-

In Roman law, which will be discussed in depth later in this article, the widow and children’s claims of property and assets from her husband and their father respectively were recognized by law. In order to protect the same, minimum legal standards of entitlement were set to ensure the family inherits some of the deceased husband’s property through the remedy of querela inofficiosi testamenti’.

Mosaic law, which was followed by the Jews and Christians of Europe recognized the children’s right to inheritance. Through a parable of the Bible, an illustration is shown of Esau selling his birthright to his son Jacob.

Further, in 1215, the Magna Carta, the royal charter or rights agreed upon by King John of England recognised certain rights of inheritance of family members.

St. Thomas Aquinas, a popular Catholic saint, in his writings of Summa Theologica’ stated that ‘marriage is an institution directed to the rearing of offspring, and hence it is “natural law” that parents should lay up for their children, and that children should be their parents’ heirs.’

Blackstone, a popular jurist, in his commentaries from the time period of 1765-69 stated that ‘the right to inherit was a civil right and not a natural one.’ 

Greece

The ancient Grecian law, particularly in Athens, was the first European law that dealt with the matter of inheritance by stating that the estate of a deceased person should naturally be inherited by his children. In the absence of any lineal descendants, the property should be inherited by the collateral relations. 

Solon, an Athenian statesman, who was in power from 638 to 558 B.C established a law by which individuals who had completed twenty years of age were entrusted with the right to make wills. However, there were certain conditions attached to this right as well which were as follows- 

  1. The individual cannot be adopted and must be a blood relation 
  2. Individuals who have male children were not allowed to make wills as the male children would naturally inherit the property on the demise of the individual
  3. The will must be made by an individual who is of sound mind
  4. The individual making the will should do so by his free will and not under the influence of compulsion, deceit, flattery and necessity

The wills had to be made in the presence of witnesses who additionally added their seals to the will to confirm the validity of the same. The provisions of the will were to be carried out by the trustees of the same. 

Roman law

According to ancient Roman law, wills were only permitted to be made by aristocrats and noblemen known as ‘Patricians’. The person writing the will was known as the testator, as is known today and the wills were initially oral declarations rather than being written (nuncupatio). Later on however, the will was made in writing and in the presence of witnesses, the testator was to declare that it was his last will. In the case of intestate succession, the property naturally went to the deceased’s wife and children or in the absence of the same, to his broader, extended family. 

Wills during the reign of Justinian

The Roman emperor Justinian revolutionised and consolidated the law of Rome which formed the basis of the Civil law tradition practiced by European countries even today. The main doctrine of law was Justinian’s code known as Corpus Juris Civilis which contained three parts- the Digests, the Institutes and the Novels. 

Under Justinian’s law, the minimum age an individual had to be in order to make a will was 14 years of age for boys and 12 years of age for girls. The will had to be signed in the presence of witnesses and could only be made by those who possessed testamentary capacity. There was also an option for the will to be published orally. The heirs were required to pay all the dues of the property and assets inherited by them to which the deceased was formerly indebted to. Roman law also had provisions for privileged wills which had been discussed previously in the article. The children’s right to inherit was also given legal recognition during the reign of Justinian. 

Novel 115 C.3 also explicitly laid down the grounds according to which an individual or heir could be denied the right to inherit the deceased’s property or in other words, be disinherited. The grounds mainly speak of violent instances of the children towards their parents, the State, insanity and refusal to accept the Catholic faith. 

English law

Before the year 1066, during the Anglo-Saxon period in England, properties were disposed of among individuals through the process of wills which were known as ‘cwide’. Contrary to Roman law, it did not recognize the universal rights of inheritance for widows and children. 

Post the Norman Conquest of 1066, alienation of lands without the consent of the Crown was prohibited and the authorities took stringent measures to ensure that the rule of primogeniture was strictly followed. Primogeniture was the natural right of succession of the firstborn child according to feudal law through which the entire estate of the deceased passed on to the eldest son. In the absence of any male heir, the property of the deceased was disposed of, which meant it came under the ownership of the State. 

In the 1200s, the courts were governed by the religious fraternity and were known as ecclesiastical courts or Church courts. These courts decided the validity of wills and issued grants of probate in cases where the wills were found to be valid. The jurisdiction of disputed wills rested solely with these church courts rather than the King’s court. 

Following the 1200s, and until the rule of Henry the VIII in 1536, there were only minor changes made to the system of wills and inheritance. However, in 1536, Henry VIII established the Statue of Uses by which the beneficiaries of the land were held as the legal owners of the same in order to impose an active duty on them so that they pay taxes and dues relating to the land they inherit.

Statute of Wills, 1540

In the face of mass protests and dissatisfaction with the Statute of Uses, it was finally replaced by the Statute of Wills in 1540. According to this statute, landowners were now directly given the power to divide their land upon their death to any tenant in return for rent in cash or by way of agricultural services (but not military services). The tenant could be any individual except a body corporate. 

The similarities between the wills established by the Statute of wills 1540 and the wills of today are the necessity of the same being in writing, signed by the testator and two other witnesses as well as recognizing the ineligibility of infants, idiots, and individuals of non-sane memory from writing a will. 

The year 1858 saw the establishment of the Principal Probate Registry which contained copies of all the wills made including the letters of administration. Until the mid-19th century, there existed huge crevices in society between the rich and the poor with the former having the means to to make wills and thus the process of making wills was restricted to the richer sections of society as a result of which the bulk of the society which consisted of the poorer individuals did not leave any wills. 

The wills of the 19th century were known as the ‘Gift of Mourners’. These wills usually began with the words ‘In the name of God Amen’, following which the testator was required to state his mental competence to prove that he was eligible to make the will. This was followed by the list of bequests or the items the testator wished to distribute among the individuals mentioned in the will. It is interesting to note that the bequests of olden times started off with items like bed linen and brassware followed by items of greater value. 

Conclusion

Wills, especially during the times of COVID-19 and in recent years in general have become a point of interest for even younger individuals who wish to settle their affairs at an earlier stage rather than wait until they come upon some unforeseen circumstances which render them in a critical condition with the future being as uncertain as it currently is. There have been efforts by members of the legal fraternity towards providing legislations that legalise ‘digital wills’ as these can greatly assist in cutting costs and saving the time of individuals as well as solve the lack of accessibility to witnesses and lawyers during these pandemic times. It is indeed a positive step in the right direction and hopefully will become a reality in the near future. 

References

  1. https://www.mondaq.com/india/wills-intestacy-estate-planning/957940/succession-laws-in-india-in-a-nutshell 
  2. https://itatonline.org/articles_new/the-entire-law-on-the-making-of-wills-explained/ 
  3. https://www.bcasonline.org/Referencer2015-16/Other%20Laws/succession_and_wills.html 
  4. https://taxguru.in/corporate-law/concept-will-india.html https://www.legalindia.com/will-under-indian-law/ 
  5. https://www.eqt.com.au/-/media/equitytrustees/files/legal-profession/sir-ninian-stephen-lecture-papers/a-brief-history-of-inheriatance-through-the-ages.pdf 
  6. https://www.findersinternational.co.uk/news/the-history-of-wills/ 
  7. https://privateclient.cyrilamarchandblogs.com/2020/04/wills-in-the-time-of-corona-challenges-and-solutions/ 
  8. https://www.mondaq.com/india/wills-intestacy-estate-planning/879416/digital-wills-in-india-legal-or-illegal 

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