Will

According to Succession Act 1925, “Will means the legal declaration of the
intention of the testator with respect to his property which he desires to be
carried into effect after his death.” [Sec 2(h)]

The concept of will under Hindu law is derived from the concept of gift. The
testamentary power of a Hindu was first established in the Nudden’s case
1772. Later several Acts has been passed to update the law of will—

1. The Hindu Will Act 1870

2. The Hindu Transfer & Bequests Act 1914
3. The Hindu Disposition of Property Act 1916
4. Indian Succession Act 1925
 Essentials of will
i. Will must be legal or lawful
ii. There must be declaration of will
iii. The declaration must relate to the disposition of property
iv. The testator must have the power to dispose the property
v. If must be intended to take effect after the death of the testator
vi. It must be revocable at the pleasure of the testator
 Who can make will
Any Hindu major person of sound mind can dispose of his
property by will or bequest under section 59 of the Indian
Succession Act 1925.
 To whom will may be made
There is no restriction regarding acceptance of will. A deaf,
dumb, minor, lunatic—every person is capable of accepting a
bequest.
 Form of will
• Before 1870, no writing was required to create a will. So oral
will was valid.
• After the passing of Hindu Will Act 1870, except a few, all will
must be in writing. So form of will was mainly in writing but
some oral will was still valid.
• After the passing of Indian Succession Act 1925, every will
must be in writing, signed by the testator and attested by at least
two witnesses. So no oral will is valid after 1925.
 Revocation of will
A will may be revoked by the creation of another will but it is not
possible to revoke a will simply by transferring the property to
another.

The modes of revocation of will are s follow—

1. By operation of law, if the legatee dies before the death of testator

2. By writing which may be—
i. By the creation of another will
ii. By expressing the intention to revoke the will
3. By destruction of the document by which will was created.
 Gift or will to unborn person
Shastric Hindu law does not permit any kind of disposition by gift or will to an unborn person or in favour of a child in
the mother’s womb. This principle was first established by the explanation of Hindu Shastras in the case of “Tagore vs.
Tagore - 1872”. After this case any kind of gift or will in favour of unborn person was declared void and no such
disposition was possible.

In order to counter this difficulty and to make the disposition in favour of unborn person by will or gift possible,
following Acts were passed—

1. The Hindu Transfer & Bequest Act 1914

2. The Hindu Disposition of Property Act 1916
3. The Hindu Transfers & Bequests (City of Madras) Act 1921

So the present law relating to gift/will to unborn person is as follows—

“No gift/will is invalid by reason only that any person for whose benefit it may have been made was not born at the
time of gift/will, if—
a) The gift to unborn person is preceded by a prior disposition of the whole residue
b) The gift does not affect the rule against perpetuity
c) The gift is made to a class of persons with regards to some of whom it is void, the gift fails in regard to those
persons only and not in regard to whole of class.”
 Questions
1. Define will with the essentials to make a will valid under
Hindu Law.
2. Who and to whom a valid will may be made?
3. How a valid will be executed after passing Succession Act
1925?
4. How will you revoke a valid will?
5. What you know about will or gift to unborn person?