THAKUR RAMNARAYAN COLLEGE OF LAW, MUMBAI.

Academic Year 2021 -2022

Department: LAW

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Full Name: ______________________________________________________

Roll No.: _______________ Section: ____________________

Subject: FAMILY LAW Date of Submission:___________

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Introduction.
Jeremy Bentham in his book “Theory of Legislation” wrote that the object of giving power
to the owner to dispose of his property by testamentary disposition is to cure the imperfection
or inability of law to satisfy individual demands which may be diverse. He states that “The
law, not knowing individuals, cannot accommodate itself to the diversity of their wants. All
that can be exacted from it is to offer the best possible chanced
of satisfying those wants. It is for each proprietor, who can and who ought to know the partic
ular circumstances in which those dependent upon him will be placed upon hisdeath, to
correct the imperfection of law in all those cases which it cannot foresee. The power to make
a will is an instrument intrusted to the hand of the individual, to prevent the private
calamities”

Will is a translation of the Latin word 'volantes', which was a term used in the text of Roman
Law to express the intention of a testator. It is of significance that the abstract term has come
to mean that document in which the intention is contained. The word 'testament' is derived
from 'testatiomenties', it testifies the determination of the mind. It means, 'the legal
declaration of a man's intentions, which will be performed after his death'. A last Will and
testament is defined to be 'the just sentence of our Will, touching what we would have done
after our death". Every testament is consummated by death-and until he dies, the Will of a
testator is ambulatory. A 'Will is an instrument by which a person makes a disposition of his
property to take effect after his decease, and which is in its own nature ambulatory and
revocable during his life". This ambulatory character of a Will has been often pointed out as
its prominent characteristic, distinguishing it, in fact, from ordinary disposition of a living
person’s deed, which might, indeed postpone the beneficial possession or even a vesting until
the death of the disposer and yet would produce such postponement only by its express terms
under an irrevocable instrument and a statement that a Will is final does not import an
agreement not to change it. A Will is the aggregate of men’s testamentary intentions so far as
they are manifested in writing, duly executed according to the Statute.

A will is a device or an instrument with the help of which an owner of the property makes a
disposition that is to take effect after his death and which by its very nature revocable. The
other reason for such power is that everybody likes to make sure that the life he has led has
been meaningful and is concerned about his property after his death. If a person has power to
dispose of his property during his lifetime, why he should not be giving
the power to provide for the scheme of devolution of his property after his death. Rule of
natural justice also requires that he must also be given power that the property he earned with
hard labour is disposed by him in accordance with his wished not only during his life, but
after his death too. A person can ensure as to how his property should devolve and to whom it
shall devolve, after his death, through a Will. This will also help him to have authority over
those who depend on him and he can use his authority to inculcate virtue and control vice in
his dependent by fear that if his dictates are not followed then such dependant will not be
getting any share in his property. If a person dies without leaving behind his Will, his
property would devolve by way of law of intestate succession and not testamentary
succession i.e., in accordance to the Will. Will is an important testamentary instrument
through which a testator can give away his property in accordance to his wishes. It is still a
moot point whether the British introduced wills to Hindus, or whether Hindus adopted some
form of will under the influence of Muslims. It is certain that with the establishment of
British rule in India, the English Law of wills was applied to Hindu Wills, so far as
practicable, under the doctrine of justice, equity and good conscience
Among the Muslims wills have been recognized from the beginning. It seems some forms of
wills did exist even in pre-Islamic Arabia
In India Wills were well known to the Mohammedans and contact with them during the
Mohammedan rule, and later on with the European countries, was probably responsible for
the practice of substituting informal written or oral testamentary instruments with formal
testamentary instruments. The development of law relating to wills among Hindus was
mainly during the British Period. When Indian Succession Act, 1865 was enacted it was not
applicable to Hindus. In 1870, the Hindu Wills Act was passed to provide for rules for
execution, attestation, revocation, revival, interpretation and probate. The Hindu Wills Act
was later was repealed and re-enacted in clause (a) and (b) of Section 57 of Indian Succession
Act, 1925. The Indian Succession Act, 1925, consolidating the laws of intestate (with certain
exceptions) and testamentary succession supersedes the earlier Acts, and is applicable to all
the Wills and codicils of Hindus, Buddhists, Sikhs and Jains throughout India. The Indian
Succession Act, 1925, does not govern Muslims and they can1 dispose their property
according tom Muslim Law.

Will and other Important: Definitions and Concepts.

To understand the rules and principles relating to Testamentary disposition, certain terms
peculiar to these dispositions has to be understood. These terms are discussed as follows:

Will:
A will is a device or an instrument with the help of which an owner of the property makes a
disposition, which is to take effect after his death and which by its nature vocable. A will
under the Indian Succession Act, 1925, which is the general law of testamentary succession
for Indians is defined as
“Will is the legal declaration of the intention of the testator with respect to his property which
he desired to be carried into effect after his death”.
A will under Sec. 2 (h) of Indian Succession Act, 1925 does not involve any transfer, nor
effect any transfer inter-vivo, but is a legal expression of the wishes and intention of a person
in regard to his property which he desire to be carried into effect after his death. A will
regulate succession and provide for succession as declared by it. A Will is a solemn
document by which a dead man entrusts to the living to the carrying out of his wishes.

1
3 Diwan, P, Law of Intestate and Testamentary Succession, at p.429, 3rd Edition (2007reprint) Universal
Law Publishing Company, Delhi
4 Id at p.430
Codicil:
Codicil is an instrument made in relation to a Will, explaining, altering or adding to its
dispositions and is deemed to be a part of the Will. The purpose of codicils to make some
small changes in the Will, which has already been executed. If the testator wants to change
the names of the executors by adding some other names, or wants to change certain bequests
by adding to the names of the legatees or subtracting some of them, a Codicil in addition to
the Will can be made to do so. The codicil must be reduced to writing and has to be signed by
the testator and attested by two witnesses. It is also the duty of the court to arrive at the
intention of the testator by reading the Will and all the codicils. The codicil and will can be
distinguished as the will representing the primary testamentary document and codicil is one
which varies or modifies the will.

Executor and Administrator:

Executor means a person to whom the execution of the last will of a deceased person is, by
the testator’s appointment confided. Where-as Administrator means a person appointed by
competent authority to administer the estate of a deceased person when there is no
2executor. An executor is appointed by the testator, as distinguished from an administrator
who is appointed by the court. Where the Will confers the powers to collect the outstanding,
pay debts and manage the properties, the person can be said to be appointed as an executor by
implication.

Probate:
Probate means the copy of a will certified under the seal of the court of competent
jurisdiction with a grant of administration to the estate of the testator. Probate is evidence of
the appointment of the executor and unless revoked, is conclusive as to the power of the
executor. The grant of probate to the executor however does not confer upon him any title to
the property.

Letter of Administration:
Letter of Administration is a certificate granted by the competent court to the administrator
where there exists a Will authorising him to administer the estate of the deceased in
accordance with the Will does not name any executor, an application can be filed in the court
for grant of Letter of Administration for the property.

5 Sec 2(h) of Indian Succession Act, 1925

6 N Ramaya v. Nagaraj, S AIR 2001 Karn 395

7 Sec 2(b) of Indian Succession Act, 1925

8 Sec 2(c) of Indian Succession Act, 1925
9 Sec 2(a) of Indian Succession Act, 1925
Attestation:
Attesting means signing a document for the purpose of testifying the signature of the
executants. Therefore, an attesting witness signing before the executants has put his mark on
the Will, cannot be said to be a valid attestation. It is necessary that both the witnesses
must sign in the presence of the testator but it is not necessary that the testator have to sign in
their presence. Further it is not necessary that both the witnesses have to sign at the same
time.3. Essential Feature of a Valid Will A Will can be made at any time in the life of a
person. A Will can be changed a number of times and there are no legal restrictions as to the
number of times it can be changed. It can be withdrawn at anytime during the lifetime of the
person making the Will. There are certain essentials which must be satisfied by any document
to be called a will. These essentials are as follows:

 Legal Declaration of Intention:

The documents purporting to be a Will or a testament must be legal, i.e., in conformity with
the law and must be executed by a person legally competent to make it. Further the
declaration of intention must be with respect to the testator’s property. It is a legal document,
which has a binding force upon the family.

 Not Confined to Property only:

In a Will, the testator bequeaths or leaves
his property to the person or people he chooses to leave his assets/belongings. A Hindu
person by way of his Will can bequeath all his property. The will can also be made torevoke
previous will and also for appointment of testamentary guardian for minor children
 Revocable:
A will is by its very nature revocable which the testator can either revoke directly by making
another will or by doing anything which has the effect of revoking the will i.e., sell the
property or make gift.

 To take effect after the death of testator:

The Will is enforceable only after the death of the testator. Till the death of the testator the
beneficiary or the executor has no 3interest in the property.

10 Sec 2(f) of Indian Succession Act, 1925

11 Sec 60 of Indian Succession Act, 1925

Kinds of will.
 Conditional wills:
A will may be made with the intention that it shall become operative only upon the happening
of the specified event. Such will not have any effect if condition is not fulfilled. In Rajeshwar
v. Sukhdev, the operation of the Will was postponed till after the death of the testator’s wife.
The court held that if it is ambiguous whether the testator intended to make a Will
conditional, the language of the documents as well as the circumstances are to be taken into
consideration.

 Joint Wills and Mutual Wills:

Two or more persons can make a joint Will or mutual will. When two or more persons make
Will by a single instrument, it may be referred toas joint Will. Thus a joint Will is a single
instrument whereby two persons give effect to their testamentary disposition. On the other
hand, a mutual Will is one of two testamentary papers made respectively by two persons,
each giving the other similar rights in his property and being in fact identical, so far as they
can be, for the purpose of carrying out of the intention of the two testators. In a joint Will
there is no reciprocity whereas mutual Wills are described as reciprocal Wills. A joint will
does not take effect as one will but as separate will of the parties who made it. The joint Will
which is not the mutual will can be revoked by either or both of the parties at any-time
without the consent of other. Two or more persons may agree to make mutual Wills i.e., to
confer on each other reciprocal benefits. In mutual Wills the testators confer benefit on each
other but if the legatees and testators are distinct, it is not a mutual Will. Mutual Wills are
also known as reciprocal Wills and its revocation is possible during the lifetime of either
testator. But if a testator has obtained benefit, then the claim against his property will lie.
Where joint Will is a single document containing the Wills of two persons, mutual Wills are
separate wills of two persons. In the case of V. Sarada v. K.V. Narayana Menon, the court
described
  4Thedistinction between joint Will and mutual Will in the following
words:
“A joint will, though for all apparent purposes, is a simple testamentary instrument,
constitutes or unites in the testamentary disposition of two or more persons. The document
only evidences that two or more persons have executed their Wills in a single document.
Mutual Wills as distinguished from joint are described as reciprocal Wills.
Reciprocity in the matter of bequests under the Wills is the sigil and signet of a mutual Will.
The Testators should confer upon each other reciprocal benefits.”
In case of mutual Wills, the testators execute their separate Wills but reading of the two Wills
would show reciprocity in the matter of bequest i.e., testators confer, by their respective wills,
reciprocal benefits upon each other. It is reciprocal will where one testator is the legatee of
the other. A will is mutual when two testators confer upon each other reciprocal benefits, as
by either of them constituting the other his legatee; that is to say, when the executants fill the
roles of both testator and legatee towards each other. But where the legatees are distinct from
the testators, there can be no question of a mutual Will. Mutual Wills may be made, either by
a joint Will or by separate Wills, in pursuance of an agreement that they are not to be
revoked. Such an agreement may appear from the Wills, or may be proved outside the Wills,
but it is not established by the mere fact that the Wills are in identical terms. If no such
agreement is shown, each party remains free to revoke his will. If there are separate Wills,
or to revoke the joint Will, so far as it disposes of his property, and the fact that one party has
died without revoking property, and the fact that one party has died without revoking the
disposition of his property does
not prevent the survivor from revoking the disposition which he has made not withstanding
that he has received benefits out of the estate of the deceased party. Even when there is such
an agreement and one party has died after departing from it by revoking or altering the Will,
the survivor having notice of the breach cannot claim to have the later Will set aside, since
the notice gives him the chance of altering the Will as regards his own property; and the
death of the deceased party is itself sufficient notice for this purpose.

4
12 AIR 1954 SC 280

13 Mellows, A.R, The Law of Succession (1970) Butterworths, London at p.16

14 Ibid

15 AIR 1989 Ker155

  5 Privileged and Unprivileged Wills:
Privileged Wills are a special category of Wills and other general Wills are known as
unprivileged Wills. S.65 of Indian Succession Act,
1925 provides that a Will made by a soldier or an 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. Whereas
Sec. 66 provides the Mode of making, and rules for executing, privileged wills. It provides
special rules of execution of the privilege wills. It states that Privileged wills may be in
1writing, or may be made by word of mouth. The execution of privileged wills shall be
governed by the following rules:
(a) The will may be written wholly by the testator, with his own hand. In such case it need
not be signed or attested.
(b) It may be written wholly or in part by another person, and signed by the testator. In such
case it need not be attested.
(c) If the instrument purporting to be a will is written wholly or in part by another person and
is not signed by the testator, it shall be deemed to be his will, if it is shown that it was written
by the testator's directions or that he recognised it as his will.
(d) If it appears on the face of the instrument that the execution of it in the manner intended
by the testator was not completed, the instrument shall not, by reason of that circumstance, be
invalid, provided that his non-execution of it can be reasonably ascribed to some cause other
than the abandonment of the testamentary intentions expressed in the instrument.
(e) If the soldier, [airman] or mariner has written instructions for
the preparation of his will, but has died before it could be prepared and executed, such
instructions shall be considered to constitute his will.
(f) If the soldier, [airman] or mariner has, in the presence of two witnesses, given verbal
instructions for the preparation of his will, and they have been reduced into writing in his
lifetime, but he has died before the instrument could be prepared and executed, such
instructions shall be considered to constitute his will, although they may not have been
reduced into writing in his presence, nor read over to him.
(g) The soldier, [airman] or mariner may make a will by word of mouth by declaring his
intentions before two witnesses present at the same time. The privileged will made by word
of mouth shall be null at the expiration of one month after the testator, being still alive, has
ceased to be entitled to make a privileged will.
Conclusion.
A will is a device or an instrument with the help of which an owner of the property makes a
disposition that is to take effect after his death and which by its very nature revocable. The
other reason for such power is that everybody likes to make sure that the life he has led has
been meaningful and is concerned about his property after his death. If a person has power to
dispose of his property during his lifetime, why he should not be give
the power to provide for the scheme of devolution of his property after his death. Rule ofnatu
ral justice also requires that he must also be given power that the property he earned with
hard labour is disposed by him in accordance with his wished not only during his life, but
after his death too. A person can ensure as to how his property should devolve and to whom it
shall devolve, after his death, through a Will. This will also help him to have authority over
those who depend on him and he can use his authority to in culcate virtue and control vice in
his dependent by fear that if his dictates are not followed then such dependant will not be
getting any share in his property. If a person dies without leaving behind his Will, his
property would devolve by way of law of intestate succession and not testamentary
succession i.e., in accordance to the Will. Will is an important testamentary instrument
through which a testator can give away his property in accordance to his wishes. Will
signifies that a person voluntarily made his wishes as to the devolution of
his property. Hence it must be free from fraud, coercion, undue influence. If the will has been
induced by employment of such craft, then court will declare such will as invalid.
The will is also required to be dated because of the rule that the later revoke all the former
wills.
In India the law governing the will is provided under Indian Succession Act, 1925. The
Indian Succession Act, 1925, consolidating the laws of intestate and testamentary succession
supersedes the earlier acts, and is applicable to all the wills and codicils of Hindus, Buddhists,
Sikhs and Jains throughout India. The Indian Succession Act, 1925, does not govern Muslims
and they can dispose their property according to Muslim Law.