RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

PUNJAB

In the complete fulfillment for the requirement of the project on the subject of
Family Law – II of B.A., LL.B. (Hons.), Fourth Semester

TOPIC:

WILL UNDER HINDU LAW

Sub
Submitted to: Dr. Gaganpreet Ma’am
Associate Professor of Law

Submitted by: Tarang Ajmera

Roll Number- 20171
Family Law Semester 4

ACKNOWLEDGEMENT
I hereby thank the faculty of Rajiv Gandhi National University of Law, Patiala, Punjab and
especially Dr. Gagan Preet Ma’am, Associate Professor of Law, for giving me the opportunity
and the insights needed to complete this study.

I also would like to express my heartfelt gratitude to the library staff for helping me whenever
needed and also to my classmates and who keep the spirit of competition alive in me. This
project has provided me with an ideal opportunity to express myself and I am indebted to all
those who have lent a helping hand.

All errors and omissions in this work, of course, remain mine alone.

Tarang Ajmera

18th April, 2022

RGNUL

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Table of Content :
1. Introduction......................................................................................................4

2. Statutory Definition of Will .............................................................................5

2.1. Will under section 2(h) of the Indian Succession Act 1925 ............................5
2.2. Other Terms .....................................................................................................5
3. Essential Features of A Valid Will ........................................................................7

4. Kinds of Will ..........................................................................................................8

4.1. Conditional Wills .............................................................................................8

4.2. Joint Wills ........................................................................................................8
4.3. Mutual Wills ....................................................................................................8
4.4. Privileged Wills ...............................................................................................8
5. Who Can Make Will ..............................................................................................9

5.1. Persons of Unsound Mind ...............................................................................9

5.2. Minors ..............................................................................................................9
5.3. Other Persons Incapable Of Making A Will .................................................10
6. Restrictions on a Will ...........................................................................................11

6.1. Transfer to unborn persons is invalid ............................................................11

6.2. Transfer made to create perpetuity ................................................................11
6.3. Transfer to a class some of whom may come under above rules ..................12
6.4. Transfer to take effect on failure of prior Transfer........................................12
7. Invalid Wills .........................................................................................................13
7.1. Wills Void Due To Uncertainty.....................................................................14
7.2. Will Void Due To Impossibility Of Condition..............................................14
7.3. Will void due to illegal or immoral condition ...............................................14
8. Registration of Will:.............................................................................................15

9. Conclusion: ..........................................................................................................17

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INTRODUCTION

A will is a legal declaration of a person's intention to have his wishes carried out after his death,
and it may only be revoked by the testator during his lifetime. A person cannot leave property to
his ancestors in a Will, but he can leave his Self-Acquired property in a Will. A Will is a
declaration of intent to appoint someone to look after his (Testator's) properties after his
(Testator's) death. It does not entail any transfer and has no effect on any transfer inter-vivos. A
Will governs the succession and ensures that the testator's wishes are followed.
A will, also known as a testament, is a legal document in which a person, known as the testator,
names one or more people to administer his or her estate and directs the transfer of his or her
property after death. In India, everyone over the age of 21 can make a will. A Will is a written
statement issued by a testator that specifies how his estate/property should be dispersed after his
death. A testamentary document, a will, takes effect after the testator's death, and if the testator
dies without leaving a Will, he is said to have died intestate. Beneficiary or legatee refers to the
person to whom the testator bestows benefits.

HISTORICAL BACKGROUND OF ‘WILLS’ :

As years progressed, the Will became more prominent, according to Indian law, which is
governed by "Section: 5" of "The Indian Succession Act, 1925," which establishes separate
standards for intestate and testamentary succession in India. Except for the Muslim community,
it applies to all Indian communities. In India, a well-developed system of succession laws
oversees the disposition of a person's assets after his death. The 'Indian Succession Act 1925'
applies to Hindus, Buddhists, Sikhs, Jains, Parsis, and Christians' Wills and codicils, but not to
Mohammedans, who are mostly protected by Muslim Personal Law.

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STATUTORY DEFINITION OF WILL

WILL UNDER SECTION 2(H) OF THE INDIAN SUCCESSION ACT 1925

The term "Will" is defined as "the legal declaration of a testator's purpose with respect to his
property that he intends to be taken into effect after his death" under "Section: 2(h)" of The
"Indian Succession Act, 1925." A testator has the authority to name anyone as a beneficiary of
his Will, whereas 'Section: 5' governs the legislation governing the transfer of a deceased
person's movable and immovable property. 1

OTHER TERMS

Codicil: A codicil is an instrument created in connection with a Will that explains, modifies, or
adds to its dispositions and is considered a part of the Will. The goal of a codicil is to make
minor amendments to a Will that has already been carried out. A Codicil can be made in addition
to the Will if the testator wishes to change the names of the executors by adding new names, or if
the testator wants to change specific bequests by adding new names to the legatees or removing
some of them. The codicil must be written and signed by the testator, as well as attested by two
witnesses.

Executor: Unlike an administrator, who is appointed by the court, an executor is appointed by

the testator. By implication, the individual might be considered to be appointed as an executor if
the Will gives them the authority to collect outstanding debts, pay debts, and manage the estate.

Probate: Probate is evidence of the executor's appointment and, unless withdrawn, is

conclusive as to the executor's authority. However, the executor's grant of probate does not give
him ownership of the property.

1
Section: 2(h) of The Indian Succession Act, 1925

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Letter of Administration: A Letter of Administration is a certificate issued by a competent

court to an administrator in the event that a Will exists, permitting him to administer the
deceased's estate according to the Will. If the Will does not identify an executor, an application
for Letters of Administration for the property can be filed with the court.

Attestation of Will: Signing a document to attest the signatures of the executants is known as
attesting. As a result, an attesting witness signing before the executors have signed the Will is not
considered a genuine attestation. It is required that both witnesses sign in the presence of the
testator, but the testator is not required to sign in their presence. Furthermore, both witnesses are
not required to sign at the same moment. It is also unnecessary for the attesting witnesses to be
familiar with the contents of the Will.

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ESSENTIAL FEATURES OF A VALID WILL

There are certain characteristics which should be included in the instrument of will such as :-
THE NAME OF THE TESTATOR : The name of the testator should be mentioned accurately
without any error in initials, spelling or grammatical mistake so that it will not affect the
instrument of Will. The name of the testator can also be clarified by looking into his birth
certificate or any school certificates.

LEGAL DECLARATION : The documents that appear to be a Will or a Testament must be legal,
that is, they must follow the law and be signed by a person who is legally able to do so.
Furthermore, the declaration of intention must pertain to the testator's personal property. It is a
legal document with binding authority over the family.

DISPOSITION OF PROPERTY: The testator bequeaths or leaves his property to the person or
people to whom he wishes to leave his assets or things in a Will. A Hindu can bequeath all of his
possessions through his Will. A member of an undivided family, on the other hand, cannot
bequeath his coparcenery interest in the family estate.

TAKES EFFECT AFTER DEATH: Only after the testator's death is the Will enforceable. The
registration of a Will is not required under section 18 of the Registration Act. In Narain Singh v.
Kamla Devi2, the Supreme Court declared that the lack of registration of a will cannot be used to
infer its genuineness. It is, nonetheless, advisable to register it because it gives strong legal
evidence of the Will's legality. When a Will is registered, it is placed in the Registrar's secure
custody and cannot be tampered with, destroyed, mutilated, or stolen.It is to be released only to
the testator himself or, after his death, to an authorized person who produces the Death
Certificate Since a testamentary disposition always speaks from the grave of the testator, the
required standard of proof is very high. The initial burden of proof is always on the person who
propounds the Will.

2
AIR 1954 SC 280, 1953 (1) BLJR 690

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KINDS OF WILL

CONDITIONAL WILLS: A will can be written to take effect when a specific event occurs. The
implementation of the Will was postponed in Rajeshwar v. Sukhdeo 3 until after the death of the
testator's wife. If it is unclear whether the testator intended for a Will to be conditional, the
wording of the documents as well as the circumstances must be considered.

JOINT WILLS: A joint Will can be made by two or more people. If the joint Will is joint and is
intended to take effect after both parties' deaths, it will not be admitted to probate during either
party's lifetime and is revocable at any time throughout the joint lives or after the survivor's
death.

MUTUAL WILLS: Two or more people can agree to make mutual Wills, i.e., to confer reciprocal
benefits on each other. Mutual Wills benefit the testators, but if the legatees and testators are not
the same, it is not a mutual Will. Mutual Wills, also known as reciprocal Wills, can be revoked at
any moment during the testator's lifetime. However, if a testator receives a benefit, the claim
against his property will be dismissed. Mutual Wills are independent Wills of two people, but
joint Wills are a single document including the Wills of two people.

PRIVILEGED WILLS: Privileged Wills are a special category of Wills and other general Wills are
known as unprivileged Wills. S.65 of ISA provides that a Will made by a soldier or a airman or a
mariner, when he is in actual service and is engaged in actual warfare, would be a privileged
Will. S.66 provides for the mode of making and rules for executing privileged Wills. Ss. 65 and
66 are special provisions applicable to privileged Wills whereas other sections relating to Wills
are general provisions which will be supplementary to Sections 65 and 66 in case of privileged
Wills4.

3
Rajeshwar v. Sukhdeo, Patna High Court 1981 (27) dt.20-10-2014
4
S. 56 & 57 of Indian Succession Act

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WHO CAN MAKE WILL

A will can be written by anyone who is competent to contract, but he must be of legal age, of
sound mind, and ready to do so. Any person who is the single owner of a self-acquired property
has the ability to leave a bequest in their will. A person who is mentally ill can form a will, but
only at lucid intervals. Some people, such as minors, insolvents, and those who have been
disqualified by the court under any legislation, are unable to make a will. A minor's Will is void
and ineffective, albeit a testamentary guardian can be appointed to dispose of the minor's
possessions. Deaf and dumb people can make a will by expressing their wishes in writing or
through sign language movements.

PERSONS OF UNSOUND MIND

Under section 59 The existence of a sound mind is a precondition for the Will's legitimacy. The
majority of wills are not written by young people who are fully functional, but rather by elderly
people who are bedridden. As a result, the law does not expect the testator to be in perfect health
or to be able to give complex instructions about how his property should be distributed. A sound
disposing mind entails the ability to cope with and comprehend the property dispositions in his
Will -
1) the testator must understand that he is giving away his property to one or more objects
2) he must understand and recollect the extent of his property 3) he must also understand the
persons and the extent of claims included as well as those who are excluded from the Will. In
Swifen v. Swifen5 it was held that the testator must retain a degree of understanding to
comprehend what he is doing, and have a volition or power of choice.

MINORS: A minor who has not reached the age of eighteen is unable to make a will. The person
who relies on the Will bears the burden of proof in determining whether the individual was a
minor at the time the Will was made. A minor is also incompetent to contract under Section 12
of the Indian Contract Act.

5
Swifen v. Swifen, S.C. 29 L.J.P. 153; 7 W. R. 461.

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OTHER PERSONS INCAPABLE OF MAKING A WILL:

According to Explanation I to S.59 of the ISA, a Hindu married woman is only capable of
disposing of property by Will that she can alienate during her lifetime. Explanation II states that
deaf, dumb, or blind people can make a Will if they can demonstrate that they were conscious of
what they were doing. Persons who are mentally ill or mad are covered by Explanation III.
However, later insanity does not invalidate a Will, i.e., if a person creates a Will while of sound
mind and then becomes mad, the Will remains valid and is not invalidated by future insanity.
Furthermore, during his lucid phase, a person of unsound mind can make a Will.
Though the burden of proof for proving that the Will was created of free will rests with the
person who proposes the Will, a Will that has been proven to be lawfully signed and certified is
believed to have been made by a person of sound mind unless shown otherwise. Furthermore, a
bequest can be made to a newborn, an idiot, a lunatic, or any other disqualified individual
because the legatee does not have to be capable of consenting.

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RESTRICTIONS ON A WILL

1. TRANSFER TO UNBORN PERSONS IS INVALID

When a gift is made to a person based on a specific description and no one matches that
description at the time of the testator's death, the bequest is void. According to Section 113 of the
Indian Succession Act of 1925, a prior interest for life must be created in another person before a
transfer to an unborn person can be made, and the bequest must include the entire remaining
interest of the testator. In Sopher v. Administrator-General of Bengal, a grandfather created a
prior interest in his son and daughter-in-law in order to make a bequest to his yet-to-be-born
grandson 6.The Court upheld the transfer to an unborn person and the Court held that since the
vested interest was transferred when the grandsons were born and only the enjoyment of
possession was postponed till they achieved the age of twenty one the transfer was held to be
valid.
In Girish Dutt v. Datadin7, The property was only to be handed to a female descendent (who
was unborn) if the person had no male descendant, according to the Will. The Court ruled that
because the transfer of property was conditional on there being no male descendent, the transfer
of interest was limited rather than absolute, and hence the transfer was null and void. Absolute
interest must be transferred to an unborn person for a transfer to be valid, and it cannot be a
limited interest.

2. TRANSFER MADE TO CREATE PERPETUITY

S.114 of the Indian Succession Act of 1925 states that no bequest is valid if the vesting of the
thing bequeathed is delayed beyond the lifetime of one or more persons living at the time of the
testator's death and the minority of some person who shall be alive at the end of that period, and
to whom the thing bequeathed is to belong if he reaches full age.

6
Sopher v. Administrator-General of Bengal (1944) 46 BOMLR 865
7 Girish Dutt v. Datadin, AIR 1934 Oudh 35

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The rule against perpetuity states that a property cannot be tethered indefinitely. The property
can't be passed down indefinitely. The rule is founded on public policy concerns, as property
cannot be considered inalienable unless it is in the community's best interests. Any gift that vests
beyond the life or lives-in-being of the donee, as well as the minority of the donee who must be
alive at the end of the last life, is invalidated under the rule against perpetuity. As a result,
property can be passed to an unborn child who must be born before the interest established
expires, and the greatest permitted duration is 18 years, which is the age of minority in India.

In Stanely v. Leigh8 it was laid down that for the rule of perpetuity to be not applicable there has
to be 1)a transfer 2)an interest in an unborn person must be created 3)takes effect after the life
time of one or more persons and during his minority 4)unborn person should be in existence at
the expiration of the interest

3. TRANSFER TO A CLASS SOME OF WHOM MAY COME UNDER ABOVE RULES:

S.115 of ISA provides that if a bequest is made to a class of persons with regard to some of
whom it is inoperative by reasons of the fact that the person is not in existence at the testator's
death or to create perpetuity, such bequest shall be void in regard to those persons only and not
in regard to the whole class9.

A number of persons are said to be a class when they can be designated by some general name as
grandchildren, children and nephews. In Pearks v. Mosesley10 defined gift to a class as a gift to
all those who shall come within a certain category or description defined by a general or
collective formula and who if they take at all are to take one divisible subject in certain
proportionate shares.

4. TRANSFER TO TAKE EFFECT ON FAILURE OF PRIOR TRANSFER

8 Stanely v. Leigh, [1999] 1 WLR 1399

9
S. 110 of Indian Succession Act
10
Pearks v. Mosesley (1885) ILR 12 Cal 663

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S.116 of the ISA states that if a bequest in favour of a person of a class of persons is declared
void in respect of that person or the entire class as a result of any of the rules set forth in sections
113 and 114, any subsequent bequest made in the same Will and intended to take effect after or
upon the failure of the prior bequest is also declared void. The idea of this section is based on the
testator's inferred intention that the person entitled to the subsequent limitation should not be
benefited until the preceding limitation has been exhausted. In the case of Girish Dutt, one S
gave property to B for the rest of her life, and after her death, if there are any male descendants,
whether born as sons or daughters, they will be given to them unconditionally. The gifted
property was to belong to C if there was no issue, male or female, living at the time of B's death.
It was decided that because the gift in C's favour was contingent on the failure of the earlier
interest in C's favour, the gift in C's favour was similarly invalid. Alternative bequests, on the
other hand, are acceptable..

5. INVALID WILLS

Wills invalid due to fraud, coercion or undue influence.

S.61 of ISA provides that a Will, or any part of Will made, which has been caused by fraud or
coercion, basically not by free will, will be void and the Will would be set aside.
Fraud: S.17 of the Indian Contract Act provides for fraud. Actual fraud can be committed
through 1) misrepresentation 2) concealment . Fraud in all cases implies a willful act on the part
of anyone whereby, another is sought to be deprived by illegal or inequitable means, of which he
is entitled to11

Coercion: S.15 of Indian Contract Act defines coercion. Any force or fear of death, or of bodily
hurt or imprisonment would invalidate a Will. In Ammi Razu v. Seshamma12, a man threatening
to commit suicide induced his wife and son to give him a release deed. It was held that even
though suicide was not punishable by the Indian Penal Code yet it was forbidden by law and
hence the release deed must be set aside as having been obtained by coercion.

11
S. 17 of Indian Contract Act
12
34 Ind Cas 578, (1917) 32 MLJ 494

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6. UNDUE INFLUENCE:
Undue influence is considered to be exercised under section 16 of the Indian Contract Act when
the relationship between the two parties is such that one party has the ability to control the will of
the other and utilises that power to gain an unfair advantage over the other. In the case of Wills,
however, neither a fiduciary relationship nor a dominant position would generate a presumption
of undue influence because all influences are legal. It is legal to persuade someone based on
feelings or ties. So long as the testator understands what he is doing, the influence of a person in
a fiduciary relationship is legal. As a result, it is possible to say that a testator can be led but not
driven.

7. WILLS VOID DUE TO UNCERTAINTY

The Will would be invalid if it was uncertain about the object or subject of the Will, according to
S.89 of the ISA. The Will may indicate some intent, but it will be void due to ambiguity if it is
ambiguous and non-specific. The Will may dispose of property in an absurd or irrational manner,
i.e., the intention may be irrational or unreasonable, but that does not make it ambiguous. To
establish ambiguity, it must be demonstrated that the testator's intention expressed in his Will is
unclear as to what he is giving or to whom he is giving.

8. WILL VOID DUE TO IMPOSSIBILITY OF CONDITION

S. 124 of the ISA states that a contingent legacy can only take effect if the contingency occurs. A
conditional Will is one that is contingent on the fulfilment of a certain condition, the failure of
which would render the Will ineffective. A bequest based on an impossible condition is void
under ISA S.126. It's possible that the condition is either before or after.

9. WILL VOID DUE TO ILLEGAL OR IMMORAL CONDITION

S.127 of ISA provides that a bequest, which is based upon illegal or immoral condition, is void.
The condition which is contrary, forbidden, or defeats any provision of law or is opposed to
public policy, then the bequest would be invalid. A condition absolutely restraining marriage
would also make the bequest void. S.138 of ISA provides that the direction provided in the Will

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as to the manner in which the property bequeathed is to be enjoyed then the direction would be
void though the Will would be valid.

REGISTRATION OF WILL:

The registration of a Will is not required under Section 18 of the 'Registration Act, 1908.' When
a Will is registered, it serves as strong legal evidence that the right parties were before the
registrars and that they attested to the Will. The procedure of registration begins when the
testator or his authorised agent deposits a Will instrument with the registrar or sub-registrar of
the jurisdictional region. The registrar will make an entry in the Register-Book by writing the
year, month, day, and hour of such presentation of the document and will issue a certified copy
to the testator once the Will instrument has been scrutinised by the registrar and the registrar is
satisfied with all of the documents. If the registrar refuses to order the Will to be registered, the
testator or his authorised agent can file a civil suit in a court of law, and if the court is pleased
with the plaintiff's evidence, the court will issue a ruling allowing the Will to be registered. A
lawsuit can only be filed within 30 days of the registrar's refusal of registration. If the testator
wishes to withdraw the Will after it has been registered, he must provide a valid cause to the
registrar, who, if satisfied, will order the registration of the Will.

Probate: It is the copy of the will that is provided to the executor, along with a certificate
signed by one of the registrars and sealed under the seal of the court, certifying that the will has
been proved. The petition for probate must be submitted to the court of competent jurisdiction
together with a copy of the deceased's final Will and Testament. The probate is made up of a
copy of the will and a grant of administration of the testator's estate. It is incontrovertible
evidence of the will's validity and proper execution, as well as the testator's testamentary ability.
The only proper documentation of the executor's appointment is a probate, which is obtained to
certify the legality of the will. The executor's award of probate confers no title to the property
that the testator had no authority to dispose of but that did belong to the testator and over which
he had disposing power with the testator's estate's grant of administration. Arbitration cannot be
used in probate proceedings. The probate court (whether the District Court or the High Court)

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has been given and bestowed with exclusive jurisdiction to award probate of a deceased person's
Will.

Statutes Relating To ‘Wills’: There are many laws which are dealing with the concept of
‘Wills’ as follows:
• Indian Succession Act, 1925
• Hindu Law (Hindus Personal Law)
• Indian Registration Act, 1908

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CONCLUSION:

A will is the legal declaration of the intention of the person making it, with respect to his
property, which intention he desires to be carried into effect after his death. Wills were wholly
unknown to pure Hindu law. But a long series of decisions (too numerous to be questioned now)
have established the testamentary powers of Hindus.

The testamentary power of a Hindu was first admitted in Bengal, then in Southern India, and
then in the former State of Bombay. Generally speaking, a Hindu will stands more or less on the
same footing as a gift.

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REFERENCE:

List of Books Referred

1. Paruck The Indian Succession Act, ed. S S Subramani & K Kannan(9th edition, Butterworths,
New Delhi, (2002)
2. Sanjiva Row’s, The Indian Succession Act, 1925, ed.Prafulla Pant (seventh
edition,Butterworths, New Delhi, (2000)
3. T.P.Gopalakrishnan’s Law of Wills, (sixth edition, the Law Book Company (P) Ltd.,
Allahbad, (1998)

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