Khyati Bhatia , Anirudh Agarwal
November 7, 2022
A will (hereinafter referred to as “Will(s)”) signifies the intentions and wishes of a person regarding the distribution of their wealth and assets after their lifetime and the person who writes a Will is referred to as a testator. In India, the execution of Wills is primarily governed by the Indian Succession Act, 1925 (“Act”) and the conditions which are deemed necessary for the purpose of executing the Wills in India are stipulated under the Act.
In this Article, we will briefly discuss and list out the types of Wills that are legally and practically executed in India along with the essential features of a Will that are to be kept in mind while drafting a Will to avoid any ambiguity or potential conflict that may arise in future in relation to the devolution of the deceased assets to the family members or any other individuals.
The term ‘Will’ is legally defined under Section 2 (h) of the Act which 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”. As per the provisions stipulated under the Act, a Will can be legally categorized into two parts i.e., Privileged Wills and Unprivileged Wills (both defined hereinafter). However, apart from the aforementioned Wills, there are other types of Wills which are practically executed and are legally recognized by the courts in India which are (i) Conditional Will; (ii) Concurrent Will; and (iii) Mutual Will (all defined hereinafter). Such Wills are also executed in accordance with the conditions stipulated under the Act for executing Unprivileged Wills in India.
Let’s have a look into the different types of Wills executed in India both legally and practically:
Privileged Will is governed under the provision of Section 65 of the Act. As per the said provision, a Privileged Will means a Will made by a soldier who is being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea. It is necessary for such individuals to complete the age of 18 (eighteen years) in order to dispose off the property by way of a Will.
Unprivileged Will is governed under the provision of Section 63 of the Act. As per the said provision, an Unprivileged Will means a Will created by 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. In simpler terms, such individuals who do not classify as a soldier, airman, or mariner will fall under the category of Unprivileged Wills.
A Will whose legality is contingent upon the happening of an event or fulfillment of a certain condition is known as a Conditional Will. Bequeathing a property as per the Will depends upon the happening or non-happening of a particular condition. As per Section 124 of the Act, “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”. Therefore, it can be understood that a Will comes into effect only after fulfilling the particular condition which can be either in the form a condition precedent or condition subsequent to the Will.
Concurrent Wills are the ones that are written by only one person, yet it covers a variety of aspects related to the disposition of the property. In simpler terms, it can be understood that separate Wills can be formulated by the testator basis the properties located in different geographical locations. One Will could deal with the disposal of movable properties while the other Will may deal with the disposal of immovable properties.
Mutual Wills are Wills created by two or more persons in order to confer on each other reciprocal benefits. In simpler terms, it is an agreement entered into between two or more persons to dispose of their property to each other or to any third person as per the particular manner or mode agreed upon by the parties. The Hon’ble Supreme Court of India in the case of Kochu Govindan Kaimal and Ors. Vs. Thayankoot Thekkot Lakshmi Amma and Ors made some observation in relation to Mutual Will which is reproduced below for ease of reference:
“A Will 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”.
Following are the conditions stipulated under the Act for executing Privileged Wills and Unprivileged Wills in India:
The following are the conditions stipulated under Section 63 of the Act for executing Unprivileged Wills:
The following are the conditions stipulated under Section 66 (2) of the Act for executing Privileged Wills:
The legal declaration must encapsulate the details pertaining to the testator (e.g., name and address), assets, properties, instructions, a declaration stating that he/she is exercising free Will while executing or drawing the Will, details of the beneficiary, division of share etc. While writing down the declaration it is not necessary to use legal jargons or technical language however, it is imperative that the intention of the testator must be unambiguous and clear from the reading of the Will itself.
A Will can be executed by a person as long as he/she understands the results of their actions along with the legal consequences. To shed clarity, as per Section 59 of the Act, every person of sound mind not being a minor may dispose of his property by Will. Moreover, as per the provisions of the Act, a person who is ordinarily insane may make a Will during an interval in which he is of sound mind. Furthermore, people who are dumb, deaf, or blind are not incapacitated from making a Will as long as they are aware of their actions except people who are under intoxication or suffering from an illness wherein, they are not aware as to what they are doing.
While making a Will, it is imperative that the testator is writing the Will voluntarily or out of his/her own free will otherwise, the Will or any part of the Will the making of which is caused by coercion, fraud or such importunity which takes away the free will of the testator is void in the eyes of law. In short, Will obtained by fraud, coercion or importunity is void.
To ensure the enforceability of a Will, it is imperative that the Will is signed, or a mark is affixed by the testator to the Will and such Will shall be attested by two or more witnesses, each of whom has witnessed or seen that the testator has signed or affixed his/her mark to the Will.
In today’s time, creating a Will has become imperative as it not only tends to avoid any potential future disputes that may arise amongst the family members but also helps in estate planning provided that the testator has got the Will registered and the probate has been obtained under the relevant statute. While creating a Will, the testator needs to be mindful of all the essential elements that are necessary to be fulfilled for the Will to be valid in the eyes of law. Preparing a Will ensures that the properties of the testator are devolved as per the instructions and intentions of the person in relation to the distribution of their wealth and assets after their lifetime.
Registering a Will is not a legal requirement under the law however, it can be optional as provided under Section 18 of the Indian Registration Act, 1908. Furthermore, as per Section 40(1) of the Indian Registration Act, 1908, 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 at any time. It is advisable to get the Will registered as it not only provides a legal sanctity and greater authenticity to the document but also substantially reduces the likelihood that family members or other relatives would contest the validity of the Will.
Yes, if the testator decides to get the Will registered with the registrar, then post registration, any testator may, either personally or by duly authorized agent, deposit with any registrar his Will in a sealed cover super scribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document.
As per Section 2(c) of the Act, executor is defined as a person to whom the execution of the last Will of a deceased person is, by the testator's appointment, confided. In simpler terms, the individual designated to oversee the entire procedure and make sure that the instructions in the Will are carried out in accordance with the testator’s preferences. Even though it is not mandatory however, it is advisable to appoint an executor in the Will for a more efficient and quick distribution of assets.
A person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. The property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, as per the rules stipulated under the Act. Furthermore, where the intestate has left a surviving child or children, but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children.
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