Professional Documents
Culture Documents
Family Law
Family Law
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:
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.
Codicil:
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 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.
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.
Attestation:
2
5 Sec 2(h) of Indian Succession Act, 1925
Kinds of will.
Conditional wills:
3
10 Sec 2(f) of Indian Succession Act, 1925
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.
14 Ibid