About the author
This article is written by Pranav C Satheesh. He is a final year BBA LLB (Hons,) student at Government Law College, Kozhikode. He is also an editor trainee at ljrfvoice.com.
INTRODUCTION
In India, succession can broadly be categorized into two main types, i.e. testamentary Succession and intestate Succession.
- Testamentary succession refers to the distribution of a deceased person’s property according to their valid will or testament.
- The Indian Succession Act, 1925, governs testamentary succession in India and lays down the legal requirements for creating a valid will, such as the mental capacity of the testator, signature, and attestation by witnesses etc.
- Intestate succession occurs when a person dies without leaving a valid will or when the will does not dispose of all their property.
- In such cases, the distribution of the deceased’s estate is governed by the laws of intestate succession, which vary based on the personal laws applicable to the deceased individual’s religion.
In the realm of estate planning, wills and codicils stand as pivotal instruments in ensuring the orderly transfer of assets and properties in accordance with an individual’s wishes posthumously. The legal framework governing wills and codicils in India is primarily derived from the Indian Succession Act, 1925, supplemented by various judicial interpretations over time.
What is a Will?
S. 2(h) of the Indian Succession Act, 1925 defines the term ‘will’ as a 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 will is a legal document that enables an individual (the testator) to delineate how their assets and properties will be distributed subsequent to their demise. It provides clarity and guidance to family members and beneficiaries regarding the testator’s intentions pertaining to their estate. A valid will typically include details such as the distribution of assets, appointment of executors, and provisions for guardianship if minor children are involved.
Key Elements of a Will
- Testamentary Capacity: As per Section 59 of the Indian Succession Act, 1925, the testator must be of sound mind at the time of executing the will. They should understand the nature of the document and its consequences.
Smt. Sarbati Devi And Anr. vs Smt. Usha Devi (1984)
In this landmark case the court delt with the issue of testamentary capacity and free consent in validating a will. The Supreme Court held that the burden of proving testamentary capacity lies on the party propounding the will, and mere proof of execution is insufficient if there are doubts about the testator’s soundness of mind.
- Free Consent: The testator must execute the will voluntarily and without any coercion or undue influence from others.
- Clear Intentions: The will must express the genuine intentions of the testator concerning the distribution of their assets. It should be clear and unambiguous to mitigate potential disputes among beneficiaries.
- Witnesses: Section 63 of the Indian Succession Act mandates that a will must be attested by at least two witnesses who are not beneficiaries or spouses of beneficiaries. These witnesses affirm the testator’s signature and presence during the will’s execution.
Janki Vashdeo Bhojwani v. Indusind Bank Ltd. and Ors. (2018)
In this case, the Supreme Court addressed the issue of attestation of a will by witnesses. The court held that while attestation by witnesses is a mandatory requirement under the Indian Succession Act, 1925, the absence of attestation does not ipso facto render the will invalid. However, the burden of proving due execution lies on the party propounding the will.
- Revocability: A testator retains the right to modify or revoke their will at any time during their lifetime, provided they possess the requisite testamentary capacity. Changes to a will can be effectuated through codicils or by drafting a new will altogether.
Types of Wills
- Privileged Wills: For soldiers, airmen, or mariners over eighteen, Section 65 of the Indian Succession Act (1925) allows privileged wills, detailing property disposal. Section 66 outlines execution rules, including provisions for unfinished or unexecuted wills due to the testator’s death, aimed at addressing military service challenges.
- Unprivileged Wills: Section 63 of the Indian Succession Act (1925) governs unprivileged wills, created by individuals not in active military service. These require signing by the testator or a proxy in the presence of two witnesses for validity, emphasizing attestation and the testator’s intent to implement the document’s contents.
- Contingent Wills: Contingent wills, also termed conditional wills, depend on future events or specific conditions. They become void if contingencies fail or conditions are unlawful, offering flexibility but contingent on specific circumstances for execution.
- Joint Wills: Joint wills involve multiple parties agreeing to a single document, often spouses leaving property to each other. They cannot be unilaterally revoked and may only take effect after all parties’ death, ensuring mutual property disposition posthumously.
- Mutual Wills: Mutual wills are agreements between parties, commonly married couples, mutually binding even after one party’s death, ensuring inheritance according to agreed terms, often used in blended families to secure children’s inheritance from previous marriages.
- Concurrent Wills: Concurrent wills coexist to address various property disposal matters, simplifying estate administration by segregating different property types into distinct wills.
- Duplicate Wills: Treated as a single will under Section 63 of the Indian Succession Act (1925), duplicate wills provide backup copies for security, ensuring testamentary intent in case of original will loss or destruction.
- Holograph Wills: Handwritten by the testator, holograph wills, if devoid of suspicion, hold legal merit, providing authenticity and ease of execution bypassing formalities associated with typed or witnessed wills.
- Sham Wills: Sham wills serve ulterior motives rather than genuine property disposition, often involving deceit or unethical acquisition, invalid under Section 61 of the Indian Succession Act (1925) voiding wills made fraudulently or under coercion, depriving the testator of free agency.
Competent Persons to Make a Will
Any person who has attained the age of majority and is of sound mind can make a will. Any individual who has attained majority and is of sound mind can make a will. In India, a person attains majority at the age of 18 years. This is governed by the Indian Majority Act, 1875. A person of unsound mind can also make a valid will if it is made during his lucid interval.
However, certain persons are disqualified from making a will, such as minors, persons of unsound mind, and individuals disqualified by law. S. 112-117 of the Indian Succession Act states that any person who can hold property can be a beneficiary of a will. Thus a minor, a person of unsound mind, a juristic person, a corporation, etc can be a legatee
Will Registration
As per Section 18 of the Registration Act (1908), will registration is optional. While it’s advisable for safeguarding, unregistered wills remain legally valid and enforceable.
In Narain Singh v. Kamta Devi (1953), it was established that lack of registration doesn’t render a will illegitimate.
Execution of a Will
Chapter III and Chapter IV of the act deals with the execution of wills.
Once the will is drafted, it should be executed in accordance with the formalities prescribed under the Indian Succession Act. The testator should sign the will in the presence of at least two witnesses, who should also sign the document in the presence of the testator and each other.
In Tulsi Ram And Anr. v. Niranjan Lal (2014) this case, the Supreme court dealt with the issue of undue influence in the execution of a will. The Supreme Court held that if there is evidence to suggest that the testator was subjected to undue influence or coercion in making the will, it may be declared invalid. The burden of proving undue influence lies on the party challenging the validity of the will.
Will Revocation
Wills are revocable until the testator’s demise, allowing changes or cancellations if the testator is mentally competent. Revocation occurs when the testator clearly indicates a desire to nullify the will’s legal effect, either explicitly or implicitly.
Codicils, as seen in Kuppuswami Raja and Anr. v. Perumal Raja and Ors. (1963), serve to modify or annul wills. Crafting a new will also signifies revocation of prior ones. Additionally, actions like burning or tearing a will indicate intent to revoke. Unintentional revocation occurs, for instance, in the event of divorce, nullifying provisions to the former spouse unless revised.
Sarabjeet Rick Singh v. Karan Singh (2010)
In this case, the Supreme Court clarified the principles governing the revocation of a will by implication. The court held that a subsequent will or codicil that is inconsistent with the provisions of the original will may operate as a revocation by implication, provided there is clear intention on the part of the testator.
What is a Codicil?
As per S. 2 (b) of the Indian Succession Act, 1925 “codicil” is defined as 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;
A codicil is a supplementary document employed to amend or append provisions to an existing will san revoking the entire will. It facilitates the testator in making minor adjustments or addressing new circumstances without necessitating a complete overhaul of the original will. Codicils are particularly valuable when the testator desires specific alterations, such as updating beneficiaries, appointing new executors, or incorporating additional assets.
Key Considerations for Codicils
- Compatibility: A codicil should align with the provisions of the original will. It should not introduce contradictions or ambiguity that could lead to legal challenges.
Lachmeshwar Prasad Shukul and Others vs. Keshwar Lal Chaudhuri and Others (1940), is a landmark case in Indian jurisprudence concerning wills and codicils. In this case, the Supreme Court laid down significant principles regarding the interpretation and validity of codicils under Indian law. The apex court held that a codicil must be construed in harmony with the will to give effect to the testator’s intentions. The court emphasized the importance of interpreting the codicil in conjunction with the original will to ascertain the testator’s true intentions regarding the disposition of their estate.
- Execution Requirements: Similar to wills, codicils must comply with the legal formalities for execution, including the presence of witnesses and the testator’s testamentary capacity.
- Revocation and Incorporation: A codicil implicitly revokes any provisions of the original will that are inconsistent with its terms. It is advisable to explicitly state in the codicil that the testator intends to preserve the remaining provisions of the original will.
- Documentation: Both the original will and any codicils should be stored together in a secure and accessible location. Executors and beneficiaries should be informed of the existence of all pertinent documents to facilitate the administration of the estate.
Recent Land-mark Judgements
In recent years, Indian courts have issued significant rulings clarifying the interpretation of laws concerning the implementation of wills, offering valuable insights into their enforcement.
- In the case of Swarnlatha and Ors v. Kalavathy and Ors, (2022)
The Supreme Court (SC) observed that in the matter of appreciating the genuineness of execution of a will, it was not for the court to see whether the distribution made by the testator was fair and equitable to all of his children.
The SC noted that “the exclusion of one of the natural heirs from the bequest, cannot by itself be a ground to hold that there are suspicious circumstances.”
- In the case of Vikrant Kapila & Ors. v. Pankaja Panda & Ors, while dealing with a dispute regarding the interpretation of clauses in the will of the deceased testator, stated that it is the duty of the court to give purposeful meaning to the words, and logical interpretation to the language of a will to draw out the real intention of the testator and recognise the dispositive rights of the beneficiaries.
- The High Court of Madhya Pradesh in the case of Kamla Bai v Narmada Prasad, dealt with a substantial question of law – whether a sole surviving coparcener can execute a will with respect to the ancestral property. The court observed that before the 2005 amendment to the Hindu Succession Act, 1956 if the sole surviving coparcener had a male child only then he could not claim to be the sole surviving coparcener, but after the 2005 amendment even if a sole surviving coparcener had a female child, his daughter would be a coparcener and therefore, he cannot bequeath the ancestral property as the sole surviving coparcener. However, the court noted that this amendment is not applicable if such property is subjected to any disposition or alienation, partition or testamentary disposition which took place before December 20, 2004. Thus, it was held that subject to this proviso, if on the date the will was executed, the testator was the sole surviving coparcener in respect of the ancestral property, then he was competent to execute the will bequeathing the property, as such ancestral property had become separate property.
Conclusion
Wills and codicils stand as indispensable instruments for individuals to assert control over the distribution of their assets and properties as per their wishes. By adhering to the legal provisions and ensuring clarity in drafting, testators can minimize the risk of disputes and ensure that their legacy is preserved as intended. Ultimately, the meticulous crafting of wills and codicils empowers individuals to provide for their loved ones and leave behind a lasting legacy.
