ANALYSIS AND EXECUTION OF PRIVILEGED AND

UNPRIVILEGED WILLS
By
Name of the Student: ANUSHKA
BOLUSANI Roll No.: 20LLB015
Semester: IV
Name of the Program: 5 Year B.A., LL.B.(Hons.)
Name of the Faculty Member: PROF. MS. VARALAXMI

Date of Submission:

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH
 CERTIFICATE

I, Anushka Bolusani, hereby declare that this project titled “ANALYSIS AND
EXECUTION OF PRIVILEGED AND UNPRIVILEGED WILLS” submitted by me is an
original work undertaken by me, I have duly acknowledged all the sources and references
from which ideas and extracts have been sourced. This project is free from plagiarism and
does not utilize any unfair means whatsoever.

(ANUSHKA BOLUSANI)
20LLB015
Semester IV
TABLE OF CONTENTS:

1. ABSTRACT
2. SYNOPSIS
 1. ABSTRACT:
A Will, also known as a testament is a document written by an individual who could be
classified as a testator. This document would describe the asset lists of testator possession and
how that asset list could be distributed to others as per the testator’s wish. The Will document
is used for legal purposes.
The Will document describes the intent of the testator and has to include the assets which the
testator owns and how the distribution of those assets as per the testator’s
wish.///ESAHAYAK
The Wills of the people of India except the people belonging to the Muslim Community, are
governed by one of the oldest laws called “The Indian Succession Act, 1925”.
A Will is defined under Section 2(h) of the Indian Succession Act, 1925, as 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.

2. SYNOPSIS:
I. INTRODUCTION:
A "Will" or "Testament" is a legal instrument through which a person, the testator, expresses
desires for the distribution of his or her property (movable or immovable), appoints one or
more people, the executor, to oversee the estate up to its ultimate distribution, and signs the
document. The distribution of an estate has historically been a matter of social custom in the
majority of the world. A will may be created by anybody who is of legal age and has
"testamentary ability" (i.e., is of sound mind). A minor is unable to create a will. A will is not
valid if the maker was under the influence of drugs or alcohol at the time it was made. A will
is a binding legal document. A Will cannot be created without following certain procedures.
Will shall be duly executed and documented as provided by law. The purpose of a will is to
dispose of property. After the testator's death, there must be some property that is being
distributed to others.
A will is only valid once the testator passes away. Prior to the testator's passing, it grants the
legatee (the recipient of the inheritance) zero rights. During the testator's lifetime, it has no
impact. A testator is free to modify his Will whenever and however he sees proper. A will
that was achieved by force, compulsion, or undue influence is invalid since it interferes with
the individual's right to free will. A will that was made while intoxicated or in a physical or
mental state that would have eliminated the testator's capacity for free agency is also invalid.
A will can be recorded with the sub-registrar even if it is not required to do so. A person can
create a will at any point in their life. There is no limit on the number of times a testator may
make a Will. But only the final Will he made before passing away is valid. A will must be
signed or inscribed with the testator's thumbprint to be considered valid. A minimum of two
witnesses who each saw the testator sign the will are required to attest to it. The testator has
the right to revoke his will at any moment.///TAXGURU

3. INTRODUCTION TO WILLS:
A "Will" or "Testament" is a legal document that the testator, a person who wishes to express
his or her wishes for the division of their property (whether movable or immovable), names
one or more executors to manage the estate up to its final distribution, and signs. In much of
the world's history, societal custom dictated how an estate should be divided. Anyone who is
of legal age and possesses "testamentary ability" may make a will (i.e., is of sound mind). A
minor is not permitted to draught a will. A will is invalid if it was created while the creator
was under the influence of drugs or alcohol. A will is a legally-binding document.
A will may also be sealed and preserved in a secure location. An executor of the Will or an
heir of the deceased testator may submit an application for probate following the testator's
passing. The other heirs of the deceased will be questioned by the court to see whether they
have any objections to the Will. The court will award probate if there are no protests. A
probate is a copy of a will that has been certified by the court and serves as irrefutable proof
that the document is authentic. A codicil to the will might be added if the testator wants to
make a few adjustments without altering the entire document. Similar to how the Will is
carried out, so too is the codicil. It is always possible to change or cancel a will or codicil. A
citation must be given to the heirs asking for their approval in the event that any of them
oppose. This needs to be shown in the court clearly. The probate will be granted if there are
no objections. A will does not become into effect until this has occurred. One can set aside
money for a devoted employee, a nurse, a buddy in need of cash, and so on. Further ways to
satisfy one's spiritual needs include setting up a trust and giving to deserving organisations
such as hospitals, orphanages, temples, nursing homes, hospitals, educational institutions,
social service organisations, etc.
It is always possible to change or cancel a will or codicil. A citation must be given to the
heirs asking for their approval in the event that any of them oppose. This needs to be shown
in the court clearly. The probate will be granted if there are no objections. A will does not
become into effect until this has occurred. One can set aside money for a devoted employee, a
nurse, a buddy in need of cash, and so on. Further ways to satisfy one's spiritual needs
include setting up a trust and giving to deserving organisations such as hospitals, orphanages,
temples, nursing homes, hospitals, educational institutions, social service organisations, etc.
An executor's duties include gathering and realising the decedent's assets, paying his
obligations, and distributing the bequests in accordance with the testator's instructions in the
Will. The executor's responsibility is to probate the will in the way required by law.
Only the executors designated in the will are eligible to receive probate from the court. Wills
may be revoked explicitly or implicitly, through action or by a particular document. The
testator may present the Will as being revoked by behaviour. For instance, a testator may
leave property to someone in his will, yet he may dispose of that property even while he is
still alive. Implied revocation is what we term this. Suppose a testator leaves an empty plot of
land in his will but then builds a home there himself. In this case, the will can be seen as
having been expressly cancelled by the testator. It is best to maintain a video recording of a
will to reduce the likelihood that its validity will be contested in court. Without a will, the law
of intestate succession takes effect, and his property is acquired by his heirs in accordance
with intestate law. A will is a formal declaration that authorises the voluntary transfer of
property after death. The Indian Succession Act, 1925 contains the wills-related law, and
Section 58 specifies that everyone is subject to its provisions with the exception of Muslims.
The following are the main elements of a will: The testament must be intended to be effective
after the testator's death. It is a formal declaration of purpose about real estate (the declaration
is not fulfilled if the forms and formalities prescribed by the law and not fulfilled). A
disposition of the property, not just the designation of a successor, must be included in the
statement with regard to the property. A competent authority may appoint an administrator in
the absence of an executor (to manage the estate of the deceased person or persons)). The
person who proposes the will has the duty of demonstrating that the testator made the will
voluntarily and at a time when they were competent to do so. If a person makes a will while
being of sound mind while having periodic periods of insanity despite being generally insane,
the will is legitimate. A beneficiary of a will can be any individual who is physically capable
of owning property. This implies that anybody can be a beneficiary of a will, including
corporations, legal entities, children, and people who are mentally incompetent. The
contested property must be personal property. A Hindu is entitled to give away his share of
Coparcenary property in his will under Section 30 of the Hindu Succession Act, even if a
Hindu is not allowed to do so under other circumstances. The law of the location where the
property is located shall apply when creating wills regarding immovable property. This claim,
however, is only significant if there are properties outside of India. The law of the testator's
domicile will be applied in terms of moveable property.

4. ADVANTAGES OF MAKING A WILL:

Regardless of age, everyone with money, property, and a family should create a will. Don't
let old age and poor health influence your decision to make a will. The advantages of creating
a will are, in summary, as follows: I Various Wills may be carried out for various properties.
(ii) It is simple to revoke by completing the necessary steps. (iii) A discretionary trust may be
established by a will to save on taxes. (iv) Giving property through a will rather than
transferring it during the testator's lifetime prevents capital gain on the transfer of capital
assets. (v)It allows the testator to distribute the property to anyone he chooses, as opposed to
Section 8's (for males) or Section 15's (for females) statutory requirements under the Hindu
Succession Act. In the case of an onerous bequest, the legatee must accept either the duty or
neither the inheritance. He cannot accept the responsibility yet reject or repudiate the
advantageous bequest (section 122). After converting to Islam, the convert will be subject to
Mohammedan law. Hindu law would apply to other converts and those who revert to
Hinduism, and the rules of the Indian Succession Act would apply to them equally to other
Hindus.

5. TYPES OF WILLS IN INDIA:

A. UNPRIVILEGED WILLS:
Unprivileged Wills are those written by those who are not serving as soldiers on expeditions,
involved in real combat, or mariners at sea. An unprivileged will has to meet the following
requirements in order to be deemed valid:

The person who draughts the will must sign it or else put his or her signature on it. If not,
another person must sign in the testator's (person who created the will) presence, following
his or her instructions.
It must look as though the testator's signature or mark, or the signature of the person signing
on their behalf, was meant to give effect to the writing as a will.
The will should be attested to by the two or more witnesses. The witnesses must have
witnessed the testator sign or seal the will, or have seen someone else sign it while the
testator was present and directing them to do so.
 B. PRIVILEGED WILLS:
Privileged Wills are testaments given verbally or in writing by anyone serving in the armed
forces, such as sailors, airmen, or soldiers. The legal requirements for a privileged Will's
validity have been lowered to allow certain people to swiftly draught a Will. A privileged
Will must meet the following requirements:

The testator signs his own handwriting throughout the whole will. It is not required to be
signed or witnessed in this situation.
The privileged Will that has been created entirely or in part by another person must be signed
by the testator. There is no need for attestation in this situation. If it can be demonstrated that
a Will was prepared entirely or in part with the testator's instructions or that the testator
recognised it as his/her Will, it is legal even if it was not signed by the testator.
If it can be demonstrated that the non-execution was caused by another factor and did not
appear to be an abandoning of intentions to form a Will, a partially finished privileged Will is
also accepted as genuine.
A privileged Will may be created orally by expressing goals.
If a marine, airman, or soldier instructed another person orally or in writing to draught a will
but passed away before it could be finished and executed. Such a will is legitimate, too.

C. Conditional or Contingent Wills:

A will can be written such that it only becomes effective if specific requirements are met, or
it can be made dependent on other variables. A conditional or contingent will is one that is
only legitimate if a certain condition or contingency occurs, and if the condition or
contingency fails, the will becomes invalid.

D. Joint Will:
A joint will is a form of will that may be made by two or more people. A joint will would not
be enforceable during either party's lifetime if it were intended to take effect after their
deaths. The joint will may be revoked at any moment throughout the joint lives or after one of
the parties dies.

E. Concurrent Will:
Concurrent wills are created by a single individual and specify how to dispose of property for
convenience in two or more Wills. For instance, one will may address the disposition of all
real estate while another might address the disposition of all personal goods.

F. Mutual Wills:
The testators provide one another reciprocal advantages in a mutual will. In order to transfer
all advantages to the other person throughout their lives, a husband and wife will sign a joint
will.

G. Duplicate Wills:
For the sake of security or safekeeping with an executor, trustee, or bank, the testator will
draught a second copy of their will. The second Will, however, is likewise regarded as
cancelled if the testator destroys the one that is in his or her possession.

H. Sham Wills:
If the testator does not intend to execute the will according to his or her desires, a sham will is
performed but deemed void. According to the Indian Succession Act, a will created by fraud,
coercion, or by removing the testator's freedom of choice is deemed invalid.

I. Holograph Wills:
This holograph will is totally written by the testator in its own handwriting.

6. PRIVILEGED AND UNPRIVILEGED WILL:

Armed services personnel who are on an expedition or engaged in real combat are permitted
to make privileged wills, which may also be done orally. Unprivileged wills are ones that can
be made by anyone who is not also able to make a privileged will. Chapters 63 and 65

Rules for making privileged wills and how they must be carried out: (Section 66)

(1) A privileged will may be made orally or in writing.

(2) The following regulations shall apply to the execution of privileged wills:

The testator may write the will entirely in his own hand. It is not necessary to sign or certify it
in this situation. It can be entirely or partially written by another person, with the testator's
signature on it. It need not be attested in this situation.
If it can be proven that the document was prepared according to the testator's instructions or
that he recognised it as his will even if it was written entirely or in part by another person and
was not signed by him, it will be considered to be his will.
3. The execution of the instrument in the manner intended by the testator may not appear to
have been completed on the face of the document, but that fact does not render the document
invalid, provided that the testator's failure to carry out his intentions as expressed in the
document can be reasonably attributed to another reason.
4. If a soldier, airman, or mariner had written instructions for making a will but passed away
before they could be made and carried out, those instructions would be regarded as a will.
5. If a soldier, airman, or mariner has given verbal instructions for the preparation of his will
in the presence of two witnesses and those instructions have been reduced to writing during
his lifetime, but he has passed away before the document could be prepared and executed,
those instructions will be regarded as his will, even if they have not been read to him or
reduced to writing in his presence.
6. A soldier, airman, or mariner may form a will orally by announcing his intentions in front
of two simultaneous witnesses.
7. When a verbal will expire one month after the testator, if still alive, loses the right to make
a privileged will, it is no longer valid.

7. EXECUTION OF UNPRIVILEGED WILLS (SECTION 63):

The following factors determine whether an Unprivileged Will is legitimate and is subject to
scrutiny: • This sort of Will must be in writing, especially in India. The terms used in the Will
must comply with the Succession Act and be straightforward.

• At least two witnesses must affix their thumbprints, sign the will, and provide their full
names and other identifying information.

• The Will's Beneficiary may not be a witness or a signatory.

• The Will must be signed by the Testator, or the person who wrote it, and/or have his/her
thumbprint.
Even though everyone is aware that death is inevitable and that there may be legal issues
involving a person's belongings and assets, which cannot be passed on to the heirs without
correct legal documents, many Indian families often don't prepare a will or even attempt to do
so. Additionally, it is not as simple for the property owner to divide their assets to family
members following their passing.

The only option that would allow for this is to write a will and register it. Everyone has to be
aware of this advantage in order to prevent conflict between individuals following the passing
of a loved one. The ability to leave a bigger portion of one's possessions, whether to special
needs children or others, is another advantage of having an unprivileged will.

The Unprivileged Will will prevent civil or other legal disputes, as most legal disputes result
in increased legal costs and time waste for all parties.///ESAHAYAK
The will must be signed by the testator, bear his mark, or be directed to be signed by another
person in his presence.
It must show that the testator's signature or mark, or the signature of the person signing on his
behalf, was meant to give effect to the writing as a will.
The will must be witnessed by two or more witnesses, each of whom has witnessed the
testator sign or mark the will, or has witnessed another person sign the will under the
testator's direction, or has received a personal acknowledgment from the testator of his
signature, mark, or the signature of such another person. However, it is not required that more
than 1 witnesses attest to the will.///MAKEMYWILL

8. DRAWBACKS DURING THE PANDEMIC:

Many nations have put in place specific laws or exemptions for those who are close to
passing away, are afflicted with particular diseases or epidemics, are unable to move because
of transportation constraints, or are trapped because of military restrictions. Some laws
mandate a formal process if the testator is still alive when the emergency has passed.
Many countries have updated their laws as a result of the requirement to digitise wills in
order to ensure that they operate as intended. For instance, a US court ruled that a will that
was written on a "tablet" and signed by the testator while being observed by two witnesses
was legal. In response to the ruling, the US Uniform Law Commission created a model law
called the Unified Electronics Wills Act that US States can adopt. Many US states issued
emergency directives about remote witnessing and will notarization during the Covid
epidemic in order to carry out wills.
Will execution can take place through video conference with the witnesses in the United
Kingdom. Due to an increase in the number of ongoing Covid cases in the UK, this provision
becomes effective on January 31, 2020. For a brief time, the Law Society of Scotland
enforced the same clause. The Ontario Government permitted witnesses to testify in wills
under two conditions: I the participants had to interact electronically; and (ii) at least one of
the witnesses had to be a lawyer.

9. SOLUTION FOR INDIA:

The COVID-19 epidemic in India, together with the necessity for infected individuals to be
quarantined and socially isolated, has made it necessary to modify the Act and establish
substitute provisions relating to the physical presence of the witnesses.

Flexible provisions under "privileged Wills" allow a person to execute a Will without any
issues using a process previously available to airmen, soldiers, etc. The following sentence
can be used to construct this provision:

Under Section 66 of the Indian Succession Act, a disaster (described below) affected person
may create a privileged Will. The term "calamity" refers to anything that puts a person in
danger of dying, including earthquakes, floods, accidents, and other natural or man-made
calamities like epidemics, riots, wars, lockdowns, etc.
By permitting the testator's digital signature to be placed on the Will in the presence of the
witness(es), who are not needed to be physically present but are permitted to remotely attach
the digital signature, it appears that such a change will update the Indian Succession Act.
There is no compelling reason why two witnesses are necessary to attest to the testator's
execution of the will; one witness is sufficient, or perhaps none at all, if the clause permits it.
The following sentence can be used to construct this provision:

Under Section 66 of the Indian Succession Act, a disaster (described below) affected person
may create a privileged Will. The term "calamity" refers to anything that puts a person in
danger of dying, including earthquakes, floods, accidents, and other natural or man-made
calamities like epidemics, riots, wars, lockdowns, etc.

By permitting the testator's digital signature to be placed on the Will in the presence of the
witness(es), who are not needed to be physically present but are permitted to remotely attach
the digital signature, it appears that such a change will update the Indian Succession Act.
There is no compelling reason why two witnesses are necessary to attest to the testator's
execution of the will; one witness is sufficient, or perhaps none at all, if the clause permits it.
The Evidence Act, which permits a single witness to verify the execution of the Will and also
stipulates various

procedures for demonstrating Will execution in the absence of witnesses (i.e., if both of them
die).

A witness is necessary primarily for two reasons: I to prevent forgery; and (ii) to confirm the
testator's identity. The Information and Technology Act recognises that digital signatures are
equivalent to physical signatures if the following prerequisites for the execution are satisfied,
therefore allowing the testator to sign the will digitally satisfies both of these criteria:

The person signing the will must create a distinctive E-signature that digitally links their
identity.
The data utilised at the moment of signing for the creation of an electronic signature should
be under the signatory's control.
To make it easy to spot any alterations to the e-signature or the signed document, the
document must be encrypted with a tamper-evident seal.
The digital will-signing process must be carried out with the appropriate care.
The Information and Technology Act of 2000 designated a Certifying Authority, who will
then be responsible for issuing the digital signature certifications.
The Information and Technology Act would recognise legal anticipation of the digitally
executed Will if the aforementioned conditions were satisfied.

10. CONCLUSION:
In conclusion, it is important to note that using an electronic signature to execute a will
carries a solid guarantee that the will continue to work as intended in the event of a disaster.
Additionally, the electronic signature (E-signature) of the witness (or witnesses) must be
taken into account while performing the attestation. To ensure due diligence and prevent
fraudulent activities and the exploitation of the supply, such a procedure must be carried out
in front of a camera. Such modifications would facilitate the execution of Wills in the event
of a disaster and give the 96-year-old Indian Succession Act a contemporary feel.