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will: in general
This is the First Chapter of a series of discussion on the Legal Propositions with respect to a "WILL"
The word "Will", in the legal parlance, is having its origin with the Latin word "Voluntas", which means 'to express the intention of a testator' in the texts of Roman law.
A "Will" is an intent of a person as to what a person has decided should be done with properties, movable or immovable, after that person's death. Therefore, a "Will" is an important testamentary instrument through which a testator can give away his property in accordance to his wishes. The concept of Will is very much prevalent in India since ages. As a matter of fact, it is an established and approved mode of giving a gift by writing a "Will" among Hindus after the life time. The concept of will is not only limited to Hindus only but the same is very much prevalent among Muslims in the form of WASIYAT.
Previously, the practice of making a will was oral. Later on the Hindus Wills Act, 1870 governed the rules with respect to the making of will. But, the said legislation was confined to the territories governed by the Lieutenant-Governor of Bengal and towns of Madras and Bombay. It is pertinent to mention herein that the concept and practice of making oral wills, as far as concerned with the Hindus, was abolished in all the territories of India after the enactment of the Indian Succession Act, 1925. The Indian Succession Act, 1925 lays down uniform rules of definition, execution, proof and construction of wills except the Muslims.
The Oxford dictionary defines a "Will" as- "to formally give your property or possessions to sb after you have died".
The Black's Law dictionary defines a "Will" as –"the legal expression of an individual's wishes about the disposition of his or her property after death".
1 Shreenandan Prasad Srivastava is an Advocate of more than 53 years of standing at Bar and was a Professor of Law, Maharaja Law College, Veer Kunwar Singh University, Arrah, Bihar 2 Pratap Shanker is an Advocate in the Supreme Court of India and the Delhi High Court.
As per the Indian Succession Act, 1925, "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.3 Every person of sound mind not being a minor may make a will; even deaf, dumb or blinds persons can make a will.4
Kinds of Will
The Indian Succession Act, 1925 recognizes mainly two kinds of "Wills"-
- Privileged Wills - Privileged Wills are a special category of Wills while other general Wills are known as unprivileged Wills.
Unprivileged wills –Unprivileged wills are the wills by a testator, who is of sound
mind and capable for contracting but is not a soldier as provided in Section 65 of
the Indian Succession Act, 1925.6
The unprivileged wills are further classified into the following kinds of wills:-
- Conditional Wills – A conditional will is a will which takes effect upon the happening of a specified contingency.7
- Joint Wills – A joint or conjoint will is a testamentary instrument executed by two or more persons, in pursuance of a common intention, for the purpose of disposing of their several interests in property owned by them in common, or of their several interests in property owned by them in common, or of their separate property treated as a common fund, to a third person or persons.8 Such wills come into effect after the death of all testators.
- Mutual Wills –Mutual Wills are also known as reciprocal wills. Will is a mutual when two testators confer upon each other reciprocal benefits. Revocation is possible during the lifetime of either testator. Where joint Will is a single document containing the Wills of two persons while the mutual Wills are separate Wills of two persons.
- Holograph –A holograph is a will or deed written entirely by the testator or grantor with his own hand.9 It is suffice to mention herein that it has got a high probative value.
- Concurrent wills –Concurrent wills are written by such testators who have properties in more than one country.
- Sham wills –Wills are stated to be Sham wills in case the same are made to achieve some hidden objective. The same is considered to be void.
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, dispose of his property by a Will made in the manner provided in section 66. Such wills are called privileged wills5.
3 Section 2 (h) of the Indian Succession Act, 1925 4 Section 59 of Indian Succession Act, 1925 5 Section 65 of the Indian Succession Act, 1925 6 Section 63 of the Indian Succession Act, 1925 7 Black's Law Dictionary, 6th Edn. 1925 8 Black's Law Dictionary, 6th Edn.
Construction of Wills:
It is not necessary that any technical words or terms of art be used in a Will, but only that the wording be such that the intentions of the testator can be known therefrom.10
- The draftsman of a will must keep and preserve the instruction notes made before the preparation of the draft. It is always advised to have the instruction notes signed by the testator.
- The contents of the will must be, as far as possible, in a language known to the Testator. In case the will is in a language not know to the testator, the same should be read over and explained to him in the vernacular language known to the Testator by some competent person so that he may fully understand the nature, contents and implication of the document and the person so explaining shall make an endorsement on the will to that effect.
- A declaration, with respect that the present will is the last will and all other earlier will and codicils are hereby revoked, has to be made.
- Beneficiaries and their relationship with the testator as well the assets must be given including the respective proportion to be devolved upon the respective beneficiaries.
- It must be attested by two independent persons as witnesses, who shall put their signatures in the presence of the Testator and the Testator should also sign in the presence of the witnesses. It is worthwhile to mention herein that the beneficiaries cannot become the witness to a will.
9 Black's Law Dictionary, 6th Edn. 10 Section 74 of the Indian Succession Act, 1925
Registration of a Will:
The registration of a Will does not fall under the category of compulsorily registrable documents.11 However, it is always advisable to have the will registered for the reason, firstly, it vindicates the intention of the person, who is making the will, which may be taken into account in case dispute lands up in the court of law. And secondly, in case the original will is lost, probate may easily be obtained of a certified copy of the same.
Will and Nomination:
Will and Nomination are two different things. Nomination mainly concerns with the deposits and payables with respect to the banking and insurance companies. Nomination has been defined in Sub Section of 2 of Section 45ZA (2) of the Banking Regulations Act, 1949. The said provision of law merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositor so far as the depositor's account is concerned. But it by no stretch of imagination makes the nominee the owner of the money lying in the account. It needs to be remembered that the Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession. All the monies receivable by the nominee by virtue of Section 45ZA (2) would, therefore, form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed.12Back