Last Will & Testament

Definition
• Part VI of Indian Succession Act, 1925.

• Defined in Sec 2(h).

• “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.”
 Terms
• TESTATOR: The person who has made a testament or
will
• CODICIL: An instrument made in relation to a will and
explaining, altering or adding to its disposition. It shall
be deemed to be a part of the will
• Executor is the legal representative for all purposes of
a deceased person (testator) and all the property of a
testator vests in him.
• Legatee/Beneficiary is a person who inherits the
property under a Will.
• Probate is a copy of the Will, certified under the seal of
a competent Court
 Essential characteristics of a Will
• It must come into effect after the death of the
testator
• It must be revocable by the testator at any
time during his/her lifetime
 Section 57
• Applicable to all Hindus, Jains, Buddhists, Sikhs
living in Bombay, Calcutta and Madras
Presidency from 1870.
• Applicable from 1927 to people living outside
the Presidency
• Proviso: Marriage shall not revoke any will
 Section 58
• The provisions of this act shall not be
applicable to Muslims
• Provisions for Muslims
• A will or Wasiyat is defined as 'an instrument
by which a person makes a disposition of his
property to take effect after the death and
which is in its own nature ambulatory
(movable) and revocable during his life'
 Formalities of Muslim Wills
• Muslim law requires no specific formalities for
creation of a will. It may be made in writing or
oral or even by gestures. Though it is in
writing, it need not be signed by the testator
and attested by the witnesses (Ramjilal vs.
Ahmed, AIR 1952 MP 56). It is necessary that
the intention of the testator should be clear
and unequivocal.
 Essential pre requisites of a Muslim
will
For a Will to be valid, the following conditions are to be satisfied.
• 1. Capacity/Competence of Testator
• 2. Competence of Legatee
• 3. Subject Matter
• 4. Testamentary Capacity
• 1. Capacity of Testator:-- According to Muslim Law, any person, who is a
major and is of sound mind can make a will. However, a minor can make a
will subject to ratification on attaining majority. According to Muslim Law,
the age of Majority is 15 years, but it is not applicable to the wills in India.
• 2. Competence of Legatee:-- Any person having capacity to hold the
property can be a legatee. The Legatee may be a Muslim or a Non-
Muslim. man or woman a major or a minor or even a child in the womb
provided the child is born within 6 months of the death of the testator.
• 3. Subject matter:- A Muslim can bequeath any property movable
or immovable, corporeal or incorporeal, which must be in existence
and transferable at the time of testator's death.
• 4. Testamentary Capacity:- A Muslim cannot dispose of by Will
more than 1/3 of the net assets after allowing (meeting) for the
debts and funeral expenses of the testator (under both Hanafi Law
and Shia Law). The remaining 2/3 share should be made available
for distribution amongst the heirs. Even for bequeathing the 1/3rd
share, the Muslim has to obtain the consent of the other heirs.
Relevant Case on this point is: GULAM MD.vs. GULAM IIUSSAIN, AIR
1932 PC 81 ... Held in this case that, bequest in favour of heirs
without the consent of other heirs is invalid.
• An heirless Muslim can bequeath his entire property. In case, his
wife, is the only heir, he can bequeath all his properties minus the
share of his wife (as per Koranic table).
 Persons capable of making Wills
section 59
• Every person of sound mind and not being a
minor can dispose off his property by will
• Married Woman: Cannot make a will of
property which she could alienate by her own
act during her life.
• Deaf, Dumb or Blind: not incapacitated
• Insane Person: during an interval of soundness
• No person during intoxication or illness,
unable to understand
 Conditional Will
• Will may be expressed to take effect only in the event
of the happening of some contingency or condition,
and if the contingency does not happen or the
condition fails, the Will is not legally enforceable.
• Accordingly, where A executes a Will to be operative
for a particular year, i.e., if he dies within that year. A
lives for more years, after that year. Since A does not
express an intention that the Will be subsisting after
the end of the year, he will be considered to have died
intestate.
• A Conditional Will is invalid if the condition imposed is
invalid or contrary to law
 Joint Wills
• A joint Will is a single document executed by
more than one person (typically husband and
wife), making which has effect in relation to
each signatory's property on his or her death
(unless he or she revokes (cancels) the Will
during his or her lifetime). Although a single
document, the joint will is a separate
distribution of property by each executor
(signatory) and will be treated as such on
admission
 Mutual Wills
• Mutual wills are any two (or more) Wills which
are mutually binding, such that following the
first death the survivor is constrained in his or
her ability to dispose off his or her property by
the agreement he or she made with the
deceased. Historically such Wills had an
important role in ensuring property passed to
children of a marriage rather than a widow or
widower's spouse on a remarriage.
 Duplicate Wills
• A testator, for the sake of safety, may make a
Will in duplicate, one to be kept by him and
the other to be deposited in the safe custody
with a bank or executor or trustee. If the
testator mutilates or destroys the one which is
in his custody it is revocation of both.
 Concurrent Wills
• Generally, a man should leave only one Will at
the time of his death. However, for the sake of
convenience a testator may dispose of some
properties in one country by one Will and the
other properties in another country by a
separate Will.
 Section 63 of ISA, 1925
• The Will is liable to be revoked at any time
provided the testator is competent to dispose
off the property of the Will.
 Intestate
• If a person dies without having made a Will,
his property is inherited by his legal heirs in
accordance with the provisions of Part V of
Indian Succession Act.
 Guardianship
• By means of a Will, a testator can appoint a
testamentary guardian for his infant children.
 Section 63- Unprivileged wills
• Every person except those mentioned in
privileged Will

• Rules:
1. The testator shall sign or shall affix his mark to
the Will, or it shall be signed by some other
person in his presence and by his direction.
2. The signature or mark of the testator, or the
signature of the person signing for him, shall be
so placed that it shall appear that it was intended
thereby to give effect to the writing as a Will.
• The Will shall be attested by two or more
witnesses, each of whom has seen the testator
sign or affix his mark to the Will or has seen some
other person sign the Will, in the presence and by
the direction of the testator, or has received from
the testator a personal acknowledgment of his
signature or mark, or of the signature of such
other person; and each of the witnesses shall sign
the will in the presence of the testator, but it
shall not be necessary that more than one
witness be present at the same time, and no
particular form of attestation shall be necessary.
 Section 66- Privileged Wills
• Privileged wills may be in writing, or may be made by word of
mouth.
• Who can make privileged Wills?
• “Any soldier being employed in an expedition or engaged in actual
warfare or an airman so employed or engaged, or any mariner
being at sea, may if he has completed the age of eighteen years”

• Execution of privileged wills shall be governed by:

1. The will may be written wholly by the testator, with his own hand. In
such case it need not be signed or attested.
2. It may be written wholly or in part by another person, and signed by
the testator. In such case it need not be attested.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

8. A 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.
 Revocation of Unprivileged will
• A will can be revoked by: (Sec. 69 and 70)
1.Marriage
2.Another Will
3.Some writing declaring an intention to the
same effect and executed in the manner of a
unprivileged Will.
4.Burning, tearing or destroying it (by himself or
any other person in his presence)
 Revocation of Privileged will
• A will can be revoked by: (Sec. 72)
1.An unprivileged Will
2.By any act expressing such intention along
with formalities as would be sufficient for a
privileged will
3.Burning, tearing or otherwise…
 Terminology in Wills
• Kind of wording: Not necessary to use technical terms.
Intention of the person should be known.(Sec. 74)
• The court has the power to scrutinize and inquire about the
specifities when a general mention of property is made in
order to ascertain that the property in question does exist.

• You have to declare in the first paragraph of the will that you
are making this will in your full senses and without any kind of
pressure. It is essential to list out all your assets in the will,
item by item, which you own.
The approximate current values of the house, land, or any
other property should be clearly mentioned in the will.
 Registration
• A will need not be registered compulsorily but
if so desired it may be registered by the
testator during his life time and thereafter by
any person who is a party to the will.
• The will may be deposited with the registering
authority. (Sec. 42 of Indian Registration Act)