DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

LAW OF WILL

SUBJECT

FAMILY LAW-2

NAME OF THE FACULTY

Dr. S. RADHA KRISHNA

Name of the Candidate

Roll No.
Semester

D. THARUN KUMAR

2014032

SEMESTER-04

Acknowledgement

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I would sincerely like to put forward my heartfelt appreciation to our respected History
professor, Dr. S. RADHA KRISHNA for giving me a golden opportunity to take up this project
regarding Law of wills. I have tried my best to collect information about the project in various
possible ways to depict clear picture about given project topic.

INTRODUCTION:

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 A Will or testament is a legal declaration by which a person, the testator, names one or
more persons to manage his/her estate and provides for the transfer of his/her property at the time
of death. A Will can be made by anyone above 21 years of age in India. A Will is a statement
made by a testator in the written form stating the manner in which his estate/property must be
distributed after his death. A Will being a testamentary document comes into effect after the
death of the testator and if the person dies without writing any Will then he is said to be have
died intestate. The person in whose favour the testator bestows the benefits called beneficiary or
legatee. A Will is otherwise called as Testament. Will is the legal declaration of a persons
intention which he wishes to be performed after his death and once the Will is made by the
testator it can only be revoke during his lifetime. A person cannot give his ancestors property in
the form of a Will but he can make a Will only of his Self-Acquired property. A Will does not
involve any transfer, nor affect any transfer inter-vivos, but it is an expression of intending to
appoint a person who will look after the properties after his (Testator) death. A Will regulates the
succession and provides for succession as declared by the testator.

HISTORICAL BACKGROUND OF WILL:

As the time rolled the emergence of the Will became more popular, Indian Law which is
governed under Section: 5 of The Indian Succession Act, 1925 which provides different rules
for intestate succession and testamentary succession in India. It applies to all the communities in
India except Muslim community. In India there is a well developed system of succession laws
that governs a persons property after his death. The Indian Succession Act 1925 applies
expressly to Wills and codicils made by Hindus, Buddhists, Sikhs, Jains, Parsis and Christians
but not to Mohammedans as they are largely covered by Muslim Personal Law.

Statutory Definition of Will:

The term Will is defined under Section: 2(h) of The Indian Succession Act, 1925,
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. A testator is authorised with a power to appoint
any person as beneficiary of his Will whereas Section: 5 deals with the law regulating
succession to deceased persons moveable and immovable property

If a person does not leave a will, or the will is declared invalid, the person will have died intestat
e, resulting in the distributionof the estate according to the laws of the state in which the person r
esided. Because of theimportance of a will, the law requires it to have certain elements to be vali
d. Apart from these elements, a will may be ruledinvalid if the testator made the will as the result
of UNDUE INFLUENCE, FRAUD, or mistake.
A will serves a variety of important purposes. It enables a person to select his heirs rather than all
owing the state laws ofdescent and distribution to choose the heirs, who, although blood relatives
, might be people the testator dislikes or withwhom he is unacquainted. A will allows a person to
decide which individual could best serve as the executor of his estate,distributing the property fai

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rly to the beneficiaries while protecting their interests, rather than allowing a court to appoint astr
anger to serve as administrator. A will safeguards a person's right to select an individual to serve
as guardian to raise hisyoung children in the event of his death.

FEATURES OF VALID WLL:

There are certain characteristics which should be included in the instrument of will such as :-

The Name of The Testator: The name of the testator should be mentioned accurately without
any error in initials, spelling or grammatical mistake so that it will not affect the instrument of
Will. The name of the testator can also be clarified by looking into his birth certificate or any
school certificates.

The Name of The Testator: The name of the testator should be mentioned accurately without
any error in initials, spelling or grammatical mistake so that it will not affect the instrument of
Will. The name of the testator can also be clarified by looking into his birth certificate or any
school certificates.

The Name of The Testator: The name of the testator should be mentioned accurately without
any error in initials, spelling or grammatical mistake so that it will not affect the instrument of
Will. The name of the testator can also be clarified by looking into his birth certificate or any
school certificates.

Revocability Under The Law: In general a Will made by the testator can be revoke at any
time during his lifetime and testator can choose any other person as his legatee. There may be
chances where a testator wishes to bring some alterations in the Will then he can make some
necessary amendments in the prepared Will which is otherwise called as Codicil. A third party
can not file a civil suit against the testator on the ground of cancellation of the Will. A Will made
by the testator may be irrevocable in some cases where an agreement is entered into contrary to
the Will, may bind the testator.

Revocability Under The Law: In general a Will made by the testator can be revoke at any
time during his lifetime and testator can choose any other person as his legatee. There may be
chances where a testator wishes to bring some alterations in the Will then he can make some
necessary amendments in the prepared Will which is otherwise called as Codicil. A third party
can not file a civil suit against the testator on the ground of cancellation of the Will. A Will made
by the testator may be irrevocable in some cases where an agreement is entered into contrary to
the Will, may bind the testator.

Revocability Under The Law: In general a Will made by the testator can be revoke at any
time during his lifetime and testator can choose any other person as his legatee. There may be
chances where a testator wishes to bring some alterations in the Will then he can make some
necessary amendments in the prepared Will which is otherwise called as Codicil. A third party

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can not file a civil suit against the testator on the ground of cancellation of the Will. A Will made
by the testator may be irrevocable in some cases where an agreement is entered into contrary to
the Will, may bind the testator.

Lost Subsequent Will: Mere loss of the original Will does not operate a revocation but it has
to be inferring by the stringent evidence to prove its revocability and a testator must show the
genuine reasons for the loss of the Will. Once it is proved that a original will is lost then
Subsequent Will will be valid.

KINDS OF WILL:

A testator who has right to make a Will for the future benefits of his family members
which will take effect after his death, the there are certain types of Wills which has to be looked
into:

1. Privileged Wills: As it can be understood from the word privilege provided to certain
persons. A privileged Will is one which is made by any soldier, airman, navy persons,
mariner who are willing to dispose of their estate during their course of employment. A
soldier includes officers and all other rank officers of service but does not include a
civilian engineer employed by the army, having no military status. A soldier while
making an instrument of Will must have attained the age of 18 years and where a will
made by the soldier is in the oral form, will be valid only for a month though a written
Will always remain operative. A privileged Will may be revoked by the testator by an
unprivileged Will or codicil, or buy 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.
2. Unprivileged Wills: Wills executed according to the provisions of Section 63 of the
Indian Succession Act, 1925 are called Unprivileged Wills. An unprivileged Will is one
which is created by every testator not being a soldier, airman, mariner so employed. An
unprivileged Will like Codicil can be revoked by the testator only by another Will or by
some writing declaring an intention to revoke the same and to be executed in the manner
in which an unprivileged Will can be executed under the Act or by burning, tearing or
destroying of the same by the testator or by some other person in his presence and by his
directions with the intention of revoking the same.

WHO CAN MAKE WILL?

Every person who is competent to contract may make a will but he must be major, sound
mind and willing to write a Will. Any person who is the sole owner of a self-acquired property
can bequeath by way of will. A person of unsound mind can also make a will but only in lucid
intervals. A Will cannot be made by some persons i.e. minors, insolvent, persons disqualified
under any law by the court. A Will executed by a minor is void and inoperative though a
testamentary guardian can be appointed for the minor to dispose off the property. A Will can be

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made by the deaf and dumb person by showing consent through writing or gestures in sign
language. Nothing prevents a prisoner or alien in India from drawing a Will.

For Whom The Will Can Be Made: Any person capable of holding property can be a legatee
under a will and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person
can be a legatee. Sections 112 to 117 of Indian Succession Act, 1925 put some restrictions on
the disposition of property by will in certain cases. Dispositions of property by will in some
cases have been declared void. If the minor person has been named as legatee by a testator then a
guardian should be appointed by the testator himself to manage the bequeathed property.

What Can Be Bequeath In A Will: Any movable or immovable property can be disposed off
by a will by its owner, that property must be a self acquired property of that person and it should
not be an ancestral property of the testator. According to Section: 30 of Hindu Succession Act,
1956 provides that any Hindu may dispose off by will or other testamentary disposition any
property, which is capable of being so, disposed of by him in accordance with law.

GENERAL PROCEDURE TO MAKE A WILL:

A Will should be prepared with utmost care and must contain several parts to make a complete
Will though there is no defined format for making a Will but a general procedure should be
adopted while writing a Will by the testator which includes:

1. Declaration In The Beginning: In the first paragraph, person who is making a Will, has to
declare that he is making this Will in his full senses and free from any kind of pressure and
undue influence and he has to clearly mention his full name, address, age, etc at the time of
writing the Will so that it confirms that a person really wishes to write a Will.

2. Details of Property and Documents: The next step is to provide list of items and their
current values, like house, land, bank fixed deposits, postal investments, mutual funds, share
certificates owned by testator. He must also state the place where he has kept all the documents if
the will documents are under safe custody of the bank then testator has to write details about the
releasing of the Will from the bank. Here it is the most important duty of the testator to
communicate the above matter to the executor of the Will or any other family members, which
will make the Will valid after testator death.

3. Details of ownership By The Testator: A testator while making a original Will should
specifically mention that who should own his entire property or assets so that it will not affect the
interest of the successors after his death. If testator wishes the name of the minor as beneficiary
then a custodian of the property should be appointed to manage the property.

4. Attestation of the Will : At the end, once the testator complete writing his Will, he must
sign the will very carefully in presence of at least two independent witnesses, who have to sign
after his signature, certifying that the testator has signed the Will in their presence. The date and

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place also must be indicated clearly at the bottom of the Will. It is not necessary that a person
should sign all the pages of the Will instrument but he must sign to avoid any legal disturbances.

5. Execution of A Will: On the death of the testator, an executor of the Will or an heir of the
deceased testator can apply for probate. The court will ask the other heirs of the deceased if they
have any objections to the Will. If there are no objections, the court will grant probate .A probate
is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the
genuineness of a Will. In case any objections are raised by any of the heirs, a citation has to be
served, calling upon them to consent. This has to be displayed prominently in the court.
Thereafter, if no objection is received, the probate will be granted and It is only after that Will
comes into effect.

REGISTRATION OF WILLS:

According to the Section: 18 of the Registration Act, 1908 the registration of a Will is
not compulsory. Once a Will is registered, It is a strong legal evidence that the proper parties had
appeared before the registering officers and the latter had attested the same after. The process of
registration begins when a Will instrument is deposited to the registrar or sub-registrar of
jurisdictional area by the testator himself or his authorised agent. Once the scrutiny of Will
instrument is done by the registrar and registrar is satisfied with all the documents then registrar
will make the entry in the Register-Book by writing year, month, day and hour of such
presentation of the document and will issue a certified copy to the testator. In case if registrar
refuses to order Will to be registered then testator himself or his authorised agent can institute a
civil suit in a court of law and court will pass decree of registration of Will if court is satisfied
with the evidence produced by the plaintiff. A suit can only be filed within 30 days after the
refusal of registration by the registrar. If the testator willing to withdraw the Will after the
process of registration then a sufficient reason has to be given to registrar, if satisfied he will
order for the registration of Will.

REVOCATION OF WILL:

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. A Will can be revoked by testator of the Will at any
point of time which can be classified into two aspects such as:-

Voluntary Revocation: A testator who wishes to revoke his original Will which is made by
him on a specified date and time, he can make revocation of the will himself by writing a
subsequent Will or codicil duly executed and by destruction of the previous will, means by
burning, tearing, destroying or striking out the signature of the original instrument of a Will.

Involuntary Revocation: According to the Section: 69 of the Indian Succession Act, 1925
which deals with revocation of will by the testators marriage, however this provision does not

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apply to Hindus. Section 57 of the Indian Succession Act clearly states that a testators marriage
will not make the Will invalid.

Probate: It is the copy of the will which is given to the executor together with a
certificate granted under the seal of the court and signed, by one of the registrars,
certifying that the will has been proved. The application for probate shall be made by
petition along with copy of last Will and testament of the deceased to the court of
competent jurisdiction. The copy of the will and grant of administration of the testators
estate together, form the probate. It is conclusive evidence of the validity and due
execution of the will and of the testamentary capacity of the testator. A probate is
obtained to authenticate the validity of the will and it is the only proper evidence of the
executors appointment. The grant of probate to the executor does not confer upon him
any title to the property which the testator himself had no right to dispose off which did
belong to the testator and over which he had a disposing power with a grant of
administration to the estate of the testator. Probate proceedings cannot be referred to
Arbitration. The probate court (whether it is the District Court or High Court) has been
granted and conferred with exclusive jurisdiction to grant probate of a Will of the
deceased.

Wills By Muslims Under Mohammedan Law:

A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation
or a declaration in compliance with moral duty of every Muslim to make arrangements for the
distribution of his estate or property. The Mohammedan Law restricts a Muslim person to
bequeath his whole property in a will and allows him to bequeath 1/3rd of his estate by writing
will, which will take effect after his death. A will may be in the form of oral or written if the will
is in writing need not be signed if signed need not be attested. Acc to Shia Law if served bequests
are made through a will, priority should be given to determination by the order in which they are
mentioned a bequest by way of will. A Will Can be made by a person who is of sound mind,
major and possessing a absolute title, in favour of a person who is capable of holding property
except unborn persons and heirs. The revocation of will is possible only if the subsequent Will is
made by the testator. A Muslim person who is allowed to bequeath 1/3rd of his estate, he can
exceed its limit on testamentary power of 1/3rd to 1/4th in case where heirs gives consent or only
heir is husband or wife.

There are many laws which are dealing with the concept of Wills as follows:

Indian Succession Act, 1925

Hindu Law (Hindus Personal Law)

Muslim Law (Muslims Personal Law)

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 Indian Registration Act, 1908

ALTERATIONS:
S.71 of ISA is applicable to alterations if they are made after the execution of the Will but
not before it. The said section provides that any obliteration, interlineations or any other
alteration in a Will made after its execution is inoperative unless the alteration is accompanied by
the signatures of the testator and the attesting witnesses or it is accompanied by a memorandum
signed by the testator and by the attesting witnesses at the end of the Will or some other part
referring to the alterations. the alterations if executed as required by the section would be read as
a part of the Will itself. However, if these requirements are not fulfilled then the alterations
would be considered to be invalid and the probate will be issued omitting the alterations. The
signatures of the testator and the attesting witnesses must be with regards to the alteration and
must be in proximity of the alteration. Further they should be in the Will itself and not in a
separate distinct paper. But if the obliteration is such that the words cannot be deciphered then
the Will would be considered as destroyed to that extent.

WORDING OF THE WILL:

S.74 of ISA provides that a Will maybe made in any form and in any language. No
technical words need to be used in making a Will but if technical words are used it is presumed
that they are in used in their legal sense unless the context indicates otherwise. Any want of
technical words or accuracy in grammar is immaterial as long as the intention is clear. Another
general principle applied is that the Will is to be so read as to lead to a testacy and not intestacy
i.e if two constructions are possible then the construction that avoids instestacy should be
followed. Further there is another principle, which says that the construction that postpones the
vesting of legacy in the property disposed should be avoided. The intention of the testator should
be decided after construing the Will as a whole and not the clauses in isolation. In Gnanambal
Ammal v. T. Raju Aiyar the Supreme Court held that the cardinal maxim to be observed by the
Court in construing a Will is the intention of the testator. This intention is primarily to be
gathered from the language of the document, which is to be read as a whole.

he primary duty of the court is to determine the intention of the testator from the Will
itself by reading of the Will. The SC in Bhura v Kashi Ram held that a construction which would
advance the intention of the testator has be favoured and as far as possible effect is to be given to
the testators intention unless it is contrary to law. The court should put itself in the armchair of
the testator. In Navneet Lal v. Gokul & Ors the SC held that the court should consider the
surrounding circumstances, the position of the testator, his family relationships, the probability
that he would use words in a particular sense. However it also held that these factors are merely
an aid in ascertaining the intention of the testator. The Court cannot speculate what the testator
might have intended to write. The Court can only interprete in accordance with the express or
implied intention of the testator expressed in the Will. It cannot recreate or make a Will for the
testator.

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EXECUTION OF WILL:

On the death of the testator, an executor of the Will (executor is the legal representative
for all purposes of a deceased person and all the property of a testator vests in him. Whereas a
trustee becomes a legal owner of the trust and his office and the property are blended together) or
an heir of the deceased testator can apply for probate. The court will ask the other heirs of the
deceased if they have any objections to the Will. If there are no objections, the court grants
probate. A probate is a copy of a Will, certified by the court. A probate is to be treated as
conclusive evidence of the genuineness of a Will. It is only after this that the Will comes into
effect.

Signature of the Testator:

S.63(a) of ISA provides that the testator shall sign or affix his mark. If the testator is
unable to write his signature then he may execute the Will by a mark and by doing so his hand
maybe guided by another person. In another words a thumb impression has been held as valid.

Restrictions on A Will:

1. Transfer to unborn persons is invalid.

Where a bequest is made to a person by a particular description, and there is no person in

existence at the testator's death who answers that description, the bequest is void. S.113 of Indian
Succession Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has
to be created in another person and the bequest must comprise of whole of the remaining interest
of the testator. In Sopher v. Administrator-General of Bengal a grandfather made the bequest to
his grandson who was yet to be born, by creating a prior interest in his son and daughter in law.
The Court upheld the transfer to an unborn person and the Court held that since the vested
interest was transferred when the grandsons were born and only the enjoyment of possession was
postponed till they achieved the age of twenty one the transfer was held to be valid.

In Girish Dutt v. Datadin , the Will stated that the property was to be transferred to a
female descendant (who was unborn) only if the person did not have any male descendant. The
Court held that since the transfer of property was dependent on the condition that there has to be
no male descendant, the transfer of interest was limited and not absolute and thereby the transfer
was void. For a transfer to a unborn person to be held valid, absolute interest needs to be
transferred and it cannot be a limited interest.

2. Transfer made to create perpetuity

S.114 of the Indian Succession Act, 1925 provides that no bequest is valid whereby the
vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons
living at the testator's death and the minority of some person who shall be in existence at the
expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.

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 The rule against perpetuity provides that the property cannot be tied for an indefinite
period. The property cannot be transferred in an unending way. The rule is based on the
considerations of public policy since property cannot be made inalienable unless it is in the
interest of the community. The rule against perpetuity invalidates any bequest which delays
vesting beyond the life or lives-in-being and the minority of the donee who must be living at the
close of the last life. Hence property can be transferred to a unborn person who has to be born at
the expiration of the interest created and the maximum permissible remoteness is of 18 years i.e
the age of minority in India.

In Stanely v. Leigh it was laid down that for the rule of perpetuity to be not applicable
there has to be 1)a transfer 2)an interest in an unborn person must be created 3)takes effect after
the life time of one or more persons and during his minority 4)unborn person should be in
existence at the expiration of the interest

3. Transfer to a class some of whom may come under above rules

S.115 of ISA provides that if a bequest is made to a class of persons with regard to some
of whom it is inoperative by reasons of the fact that the person is not in existence at the testator's
death or to create perpetuity, such bequest shall be void in regard to those persons only and not in
regard to the whole class.

A number of persons are said to be a class when they can be designated by some general
name as grandchildren, children and nephews. In Pearks v. Mosesley defined gift to a class as a
gift to all those who shall come within a certain category or description defined by a general or
collective formula and who if they take at all are to take one divisible subject in certain
proportionate shares.

4 Transfer to take effect on failure of prior Transfer

S.116 of ISA provides that where by reason of any of the rules contained in sections 113
and 114 and bequest in favour of a person of a class of persons is void in regard to such person or
the whole of such class, any bequest contained in the same Will and intended to take effect after
or upon failure of such prior bequest is also void.

he principle of this section is based upon the presumed intention of the testator that the
person entitled at the subsequent limitation is not intended to be benefited except at the
exhaustion of the prior limitation. In Girish Dutt case one S gave property to B for life and after
her death if there be any male descendants whether born as son or daughter to them absolutely. In
the absence of any issue, whether male or female, living at the time of Bs death, the gifted
property was to go to C. it was held that the gift in favour of C was dependent upon the failure of
the prior interest in the favour of daughter and hence the gift in favour of C was also invalid.
However alternative bequests are valid.

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INVALID WILLS:

Wills invalid due to fraud, coercion or undue influence

S.61 of ISA provides that a Will, or any part of Will made, which has been caused by fraud or
coercion, basically not by free will, will be void and the Will would be set aside. Fraud: S.17 of
the Indian Contract Act provides for fraud. Actual fraud can be committed through 1)
misrepresentation 2) concealment . Fraud in all cases implies a willful act on the part of anyone
whereby, another is sought to be deprived by illegal or inequitable means, of which he is entitled
to Coercion: S.15 of Indian Contract Act defines coercion. Any force or fear of death, or of
bodily hurt or imprisonment would invalidate a Will. In Ammi Razu v. Seshamma , a man
threatening to commit suicide induced his wife and son to give him a release deed. It was held
that even though suicide was not punishable by the Indian Penal Code yet it was forbidden by
law and hence the release deed must be set aside as having been obtained by coercion. Undue
influence: Undue influence u/s.16 of Indian Contract Act is said to be exercised when the
relations existing between the two parties are such that one of the parties is in the position to
dominate the will of the other and uses that position to obtain an unfair advantage over the other.
However neither fiduciary relationship nor a dominating position would raise a presumption of
undue influence in case of Wills as all influences are not unlawful. Persuasion on the basis of
affection or ties is lawful. The influence of a person in fiduciary relationship would be lawful so
long as the testator understands what he is doing. Thus it can be said that a testator maybe led but
cannot be driven.

Wills Void Due To Uncertainty

S.89 of ISA states that if the Will were uncertain as regards either to the object or subject
of the Will then it would be invalid. The Will may express some intention but if it is vague and
not definite then it will be void for the reason of uncertainty. The Will may depose of the
property absurdly or irrationally i.e the intention maybe irrational or unreasonable, but that does
not make it uncertain. For uncertainty to be proved it has to be proved that the intention declared
by the testator in the Will is not clear as to what is he giving or whom is he giving. Only if the
uncertainty goes to the very root of the matter, then only the Will has to be held void on the
grounds of uncertainty.

Will Void Due To Impossibility Of Condition

S. 124 of ISA provides that a contingent legacy can take effect only on happening of that
contingency. A conditional Will is that Will which is dependent on the happening of a specific
condition the non-happening of which would make the Will inoperative. S.126 of ISA provides
that a bequest upon an impossible condition is void. The condition maybe condition precedent or
condition subsequent.

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Will void due to illegal or immoral condition

S.127 of ISA provides that a bequest, which is based upon illegal or immoral condition, is void.
The condition which is contrary, forbidden, or defeats any provision of law or is opposed to
public policy, then the bequest would be invalid. A condition absolutely restraining marriage
would also make the bequest void. S.138 of ISA provides that the direction provided in the Will
as to the manner in which the property bequeathed is to be enjoyed then the direction would be
void though the Will would be valid.

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