Law relating to WILLS in India

There is a saying “Where there is a Will, there is a way”. However, in absence of a properly-executed Will, the ways ahead may be too complicated to handle. Bigwig families in India like Ambanis, Birlas, and Ranbaxy brothers will not disagree that the road to succession is generally paved with ill Will chronicles. Will planning as part of financial management, has not assumed that much relevance in India what it should actually have. By making a Will one can assuredly rest that his properties devolve as desired and the rightful heirs receive their share. According to the Indian Succession Act 1925, a Will is a legal declaration of the intention of the testator, with respect to his property which he/she desires to be put into effect after his/her death. Post death of a person, two scenarios arise in respect of his property; (a) as per his Will i.e. testamentary, or (b) according to the prevalent law of succession, when no Will is made. In the event of an individual dying intestate i.e. no Will is made, the law of succession assumes its role. 

A clearly written Will helps in avoiding any squabbling among the heirs. And, in case an individual wants to bequeath his/her wealth to anyone other than the natural heirs, the Will assumes supreme importance. A Will can be enforced only after the death of the testator (maker). It bestows no rights upon the beneficiary (the person who inherits) prior to the death of testator. A Will made by any Indian is governed by the provisions of the Indian Succession Act, 1925. However Mohammedans are not governed by the said Act and they can dispose their property according to Muslim Law. 

Who can make a Will?

Any person, having attained age of 18 years, and not having unsound mind, can bestow his/her property through a Will. A Will can be made at any time during the lifetime of an individual. There is no bar as to how many times a Will can be made by a testator. However, only the last Will made before death can be enforced. A testator can change his Will, at any time, in any manner he deems fit, including revocation of earlier Will. A Will, obtained by force, coercion or undue influence, is a void Will as it is not the outcome of free state of mind of the person. A Will, made under influence of intoxication is also void. Any person capable of holding property can be beneficiary under a will meaning thereby, a minor, lunatic, a body corporate, trust, society or any other juristic person, even a deity can be a beneficiary. Any movable or immovable property can be disposed off though a Will by testator provided he is the owner of the same. A property not owned by testator cannot be bequeathed by a Will even if it belongs to someone who is closely related. Tenancy rights cannot be bestowed through a Will. 

Scribe and Registration of Will

A Will can be written on plain paper and there is absolutely no requirement in law to execute the Will on stamp paper. A Will may be written by testator himself, or by any other person of his trust, or by any professional like a deed-writer or a lawyer. It can be hand-written or typed. A Will is not a compulsorily registrable document as per Registration Act. A Will is equally valid and valued even if it is unregistered, however, registration simply puts an end to any doubts raised over its authenticity and adds additional genuineness to the execution of Will. Registration attaches strong legal evidentiary value to the Will in case dispute arises regarding its execution. Testator needs to visit the office of sub-registrar for such registration alongwith original Will, witnesses and prescribed fee. In case, the testator is bed-ridden and unable to travel to sub-registrar’s office, there is also provision for sub-registrar to visit the place of testator for such registration upon payment of additional fee. A Will may be got attested from a Notary Public, but the position in regard to authenticity and genuineness in that case is definitely below the level of registration of Will from sub-registrar. 

Signature and Witnesses 

The signature or thumb impression of the testator is basic requirement for a Will, which must be appended in the presence of atleast two marginal witnesses to the Will. The witnesses must have seen the testator signing or putting his thumb impression and the witnesses also must sign the Will in presence of testator. For a Will to be valid, the beneficiary under a Will, should not be a witness to the same. 

Revocation of Will 

Revocation of Will can be classified into two classes: (a) Voluntary and (b) Involuntary (by operation of law) 

Voluntarily, a Will can be revoked in the following manner:- 

• By execution of a subsequent Will;
• By some writing and declaring an intention to revoke the Will;
• Burning of the Will;
• By tearing of the Will;
• Otherwise destroying the Will;

Involuntary revocation of Will has been provided in Section 69 of Indian Succession Act, 1925, whereby a Will executed by a Parsi or a Christian testator shall stand revoked, in the event of marriage of testator. This, however, does not apply to Hindus, Sikhs, Jains, and Buddhists as provisions of Hindu Succession Act, 1956, have overriding effect on Indian Succession Act, 1925. 

A revoked Will has no existence in the eyes of law 

Codicil to the Will 

If a testator intends to make a few changes to the Will without changing the entire Will, he can do so by making a codicil to the Will. The codicil can be executed in a similar way as the Will and is generally made to rectify the mistakes that happened in the Will. 

Probate of Will 

A Probate is an official proof of a Will. A Probate is issued by the Court to the executor of the Will and thereby adds a legal character to the will. To make a probate petition successful, the executor needs to prove in the court beyond any reasonable shadow of doubt that:

1. The will is genuine and is the last will made by the testator.
2. The proof of death of the testator.
3. That the will is validly executed in clear conscience of the testator.

The probate is issued if no objections are received from any kith or kin of testator or any general public after payment of requisite court fee. 

Challenge to a Will in Court

A Will can be challenged by the concerned person in court, either in probate proceedings or by filing civil suit or by raising objections in mutation proceedings, on the following grounds: 

Lack of due execution: A person can challenge a Will on the ground that it lacks some basic requirements of law. Any flaw in the Will like signatures, date, witnesses, false statement etc can render the Will invalid in the eyes of law. 

Lack of testamentary capacity: According to Indian Succession Act, 1925, only a person of sound mind above 18 years of age can make a Will. A Will can be declared invalid if it is proved in the court that testator was minor at the time of executing the Will, or not in a sound state of mind, or had a disorder like dementia or insanity, or was under the influence of intoxicant, or lacked the mental capacity to make a Will. 

Lack of testamentary intention: A will can be challenged on the ground that the testator had no intention to make the Will, or dispose the property in the mode and manner mentioned in the Will. However, it is quite a task to disprove a Will on this ground. 

Fraud: This is the most common ground of challenge to a Will in India. A Will can be challenged in the court proceedings on the basis that it is the outcome of fraud played upon by executor/beneficiary. The person contesting the will has to prove that signatures on the same are not of the testator or that Will has been forged upon blank paper carrying signatures of testator. It is worth mentioning here that registration of Will almost nullifies this ground of challenge. 

Lack of knowledge or approval: A Will can be contested if it is proved that it was created under suspicious circumstances where the testator was either not aware of the contents of the Will, or his consent to the execution has been obtained under fraud, coercion or undue influence. A Will can also be challenged on the ground that no reason has been assigned by the testator in the Will for excluding the persons who were otherwise entitled to succeed to the estate of testator. 

For the advantage of beneficiary under the Will, the same should be brought in the daylight as soon as possible after death of the testator, as any delay in doing so shall make the Will doubtful in the eyes of law and may also render the Will invalid. Similarly, the challenge to a Will should also be made as early as possible so as to prevent its execution. As the saying goes, “Where there is a Will, there is a lawsuit”.

The author is a B.Com, LL.B (Hons), LL.M, Advocate, practicing at District Courts, Ludhiana. He can be reached at kalia.advocate@gmail.com. Views expressed herein are personal views of author.