Will

What is 'Will'

A will is a legal document that allows individuals to direct the way their inheritance would be maintained and divided after their demise. It is an official expression of the desires of the testator with respect to the distribution of their properties and possessions.

Official Definition of 'Will'

Section 3(64) of General Clauses Act, 1897 says that  “will” shall include a codicil and every writing making a voluntary posthumous disposition of property.

'Will' as defined in legislation:

Indian Succession Act, 1925 defines will under section 2(h) in the following manner: “Will” means 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.

'Codicil’ as defined in legislation:

Indian Succession Act, 1925 defines codicil  under section 2(b) in the following manner: “codicil” means an instrument made in relation to a Will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the Will.

'Probate’ as defined in legislation:

Indian Succession Act, 1925 defines probate under section 2(f) in the following manner: “probate” means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.

Types of 'Will'

Privileged Wills

Section 65, ISA: 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, dispose of his property by a will made in the manner provided in section 66 of ISA. Such wills are called privileged wills.

Unprivileged Wills

An Unprivileged Will, is a legal document that can be created by any individual who is not eligible to make a Privileged Will.

Conditional / Continngent Wills

Contingent Will: A contingent will is a will that takes effect only when a specific condition occurs. These are also called conditional wills. Section 124 of Indian Succession Act lays down that Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable. Moreover, A bequest upon an impossible condition is void. A bequest upon a condition, the fulfilment of which would be contrary to law or to morality is void.

Wills under Muslim Law

The Islamic will is called al-wasiyya. The one who makes a will (wasiyya) is called a testator (al-musi). The one on whose behalf a will is made is generally referred to as a legatee (al-musa lahu).

The essential difference between the rules governing disposition of property by a will under Muslim Law and under Indian Succession Act, 1925 is that under Muslim Law, a testator cannot make a will of more than one-third of his or her property but under Indian Succession Act, a person can make a testamentary disposition of 100% of the property. Secondly, under Muslim Law there are restrictions on the powers of the testator in case of an heir and under Indian Succession Act there is no such restriction.

Legal provision(s) relating to 'Will'

Person Capable of Making Wills

ISA Section 59 provides that every person of sound mind not being a minor may dispose of his property by will.

1. A married woman may dispose by will of any property which she could alienate by her own act during her life.
2. Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.
3. A person who is ordinarily insane may make a will during interval in which he is of sound mind.
4. No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.

Will Obtained by Fraud, Coercion or Importunity

ISA Section 61 - A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.

Revocation or Alteration of Will

1. ISA Section 62-  Will may be revoked or altered.—A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will.
2. ISA Section 67 - Effect of gift to attesting witness.—A will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far asconcerns the person so attesting, or the wife or husband of such person, or any person claiming under either of them.
3. Section : 69. Revocation of will by testator’s marriage.—Every will shall be revoked by the marriage of the maker, except a will made in exercise of a power of appointment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.
4. Section 70 - Revocation of unprivileged will or codicil.—No unprivileged will or codicil, nor any part thereof, shall be trevoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is herein before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.
5. ISA Section 71. Effect of obliteration, interlineation or alteration in unprivileged will.—No obliteration, interlineation or other alteration made in any unprivileged will after the execution thereof shall have any effect, except so far as the words or meaning of the will have been thereby rendered illegible or undiscernible, unless such alteration has been executed in like manner as hereinbefore is required for the execution of the will.
6. ISA Section 71. Effect of obliteration, interlineation or alteration in unprivileged will.—No obliteration, interlineation or other alteration made in any unprivileged will after the execution thereof shall have any effect, except so far as the words or meaning of the will have been thereby rendered illegible or undiscernible, unless such alteration has been executed in like manner as hereinbefore is required for the execution of the will.

ISA Section 72. Revocation of privileged will or codicil.—A privileged will or codicil, may be revoked by the testator by an unprivileged will .or codicil, or by any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged will, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.

Revival of Unprivileged Wills

ISA Section 73: No unprivileged will or codicil, nor any part thereof, which has been revoked in any manner, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same. When any will or codicil, which has been partly revoked and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary is shown by the will or codicil.

Execution of Unprivileged Wills

Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:—

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. 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 an d 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 no particular form of attestation shall be necessary.

Execution of Privileged Wills

ISA Section 66: Privileged wills may be in writing, or may be made by word of mouth. The execution of privileged wills shall be governed by the following rules:— The will may be written wholly by the testator, with his own hand. In such case it need not be signed or attested. It may be written wholly or in part by another person, and signed by the testator. In such case it need not be attested. 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. 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. 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. 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.

Registration of Wills: Provisions of The Registration Act 1908

1. Under section 18 of the The Registration Act 1908, the registration of will is optional. Section 17 of the said Act enumerates a list of documents which are compulsorily registerable. The list in Section 17 does not list "Will" as a compulsorily registrable document. Hence, it follows that there is no legal obligation to register the Will. In other words, a Will which is not registered is as valid as the registered Will, if it is otherwise in compliance with the provisions relating to Wills specified in the ISA.
2. Section 40.  Persons entitled to present wills and authorities to adopt:- (1) The testator or after his death any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub -Registrar for registration. (2) The donor, or after his death the donee, of any authority to adopt, or the adoptive son, may present it to any Registrar or Sub - Registrar for registration.
3. Section 41. Registration of wills and authorities to adopt:- (1) A will or an authority to adopt, presented for registration, by the testator or donor, may be registered in the same manner as any other document. The Registration Act 1908 14 (2) A will or authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer is satisfied - (a) that the will or authority was executed by the testator or donor, as the case may be; (b) that the testator or donor is dead; and (c) that the person presenting the will or authority is, under section 40, entitled to present the same.
4. Section 42. Deposit of wills:- Any testator may either personally or by duly authorised agent deposit with any Registrar his will in a sealed cover superscribed with the name of the testator and that of his agent if any and with a statement of the nature of the document.
5. Section 43. Procedure on deposit of wills:- (1) On receiving such cover the Registrar if satisfied that the person presenting the same for deposit is the testator or his agent shall transcribe in his Register - Book No. 5 the superscription aforesaid and shall note in the same book and on the said cover the year month day and hour of such presentation and receipt and the names of any persons who may testify to the identity of the testator or his agent, and any legible inscription which may be on the seal of the cover. (2) The Registrar shall then place and retain the sealed cover in his fireproof box.
6. Section 44. Withdrawal of sealed cover deposited under section 42:- If the testator who has deposited such cover wishes to withdraw it, he may apply, either personally or by duly authorised agent, to the Registrar who holds it in deposit, and such Registrar if satisfied that the applicant is actually the testator or his agent, shall deliver the cover accordingly.
7. Section 45. Proceeding on death of depositor:- (1) If, on the death of a testator who has deposited a sealed cover under section 42, application be made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, he shall, in the applicant's presence, open the cover, and, at the applicant's expense, cause the contents thereof to be copied into his Book No. 3. (2) When such copy has been made, the Registrar shall re-deposit the original will.

Wills under Hindu Succession Act, 1956 Section 30

Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force and applicable to Hindus.

International Experience

United States of America

In the majority of states in the USA, execution of a will is considered valid if it is in writing, signed by the testator, and notarized. Making a will requires by two individuals as witnesses. If a will is improperly executed, it may still be valid according to the harmless error rule of the Uniform Probate Code (UPC). Some states recognise holographic wills and codicils, which are amendments to the will, are generally recognised if they observe the same formalities and procedural requirements for will execution.  In many states, a will that is formally executed in front of witnesses with all signatures notarized is deemed to be “self-proving” and may be admitted to probate without the testimony of witnesses or other additional proof.

United Kingdom

Scotland and Northern Ireland are subject to various sets of regulations. To ensure legal validity, a person can have their will officially witnessed and signed. A new will can be made or an official modification (referred to as a "codicil") can be made if someone wants to revise the will. In the event of a death without a will, the law determines the heirs. Someone who is unable to make their own will could have one made on their behalf. This could occur after someone experienced a severe brain damage, disease, or dementia. How making or altering a will might effect the people they love, how much money they have, or what property they own, cannot be understood by someone who is unable to understand these concepts.

France

A notary drafts a will in front of two witnesses or another notary; the testator must sign the authentic will. The client gives instructions, and the notary writes it himself. After that, he reads it out, and everyone signs it—unless the client is too weak to do so. A genuine will is a useful tool for making sure that the legal forms are followed (mostly in terms of the act's content). Consequently, it is quite unusual that the authenticity of this document may be questioned. A will cannot be made by two or more people in one act under French law. Consequently, a will created by a single person or by a couple is void.

United Arab Emirates

Unlike Indian courts, the UAE's legal system does not adhere to common law principles. As a result, there is no clear precedence for interpreting inheritance laws precisely. Therefore, even if a will's execution may not always guarantee that money, wealth, and assets are distributed in line with a person's preferences, it will almost certainly make things easier for the beneficiaries. It's also likely to assist in obtaining guardianship for kids in line with their parents' desires. When a person of any faith passes away intestate—that is, without leaving a will—the courts have the authority to follow Shari'a law when it comes to child custody and asset succession. The two Federal Laws that govern inheritance matters in the United Arab Emirates are as follows: The Personal Affairs Law of No.28 of 2005 which allows non-Muslim expats living in the UAE to opt to use the law of their own countries to distribute their assets are in the UAE. The other federal law in this area is the UAE Civil Code.

Germany

A will, sometimes known as a testament, is a unilateral disposition mortis causa (letztwillige Verfügung), as defined by BGB § 1937. In general, the testator has the right to cancel or amend a will, in whole or in part (See § 2253 BGB). Generally speaking, anyone who has become sixteen years old is able to establish a will. Refer to BGB § 2229 (1). A valid will cannot be made by someone who suffers from mental illness such as dementia, unsound mind, or temporal derangement and is unable to comprehend the testamentary disposition procedure. Refer to BGB § 2229 (3). The burden of proof rests with whoever asserts that the testator lacked testamentary ability.

Other Types of Wills in Various Parts of the World

1. Joint Will: A joint will is a legal document executed by two (or more) people, which merges their individual wills into a single, combined last will and testament. The nomenclature of Mutual Will gained widespread recognition after the Hon’ble Supreme Court, in year 2008, revisited the concept in the matter of Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors.
2. Concurrent Will: Concurrent Wills are written by one person wherein two or more Wills provide instructions for disposal of property for the sake of convenience.
3. Mutual Will: Mutual wills are wills which are made by two people (usually, but not always, spouses or civil partners), typically in the same terms, with the agreement that neither party will alter or revoke either will during lifetime without the other’s consent, or after the first death. The terms of the will therefore will remain binding on the survivor after the first death whether or not they make a later will.