Essentials of a will

 Will means the legal declaration of the intention of a testator with respect to his property, which he desires to take effect after his death. 

Essentials of a will – The following are the essentials of a will.

Legal declaration by the executant

The declaration by the executant of the will, must be legal viz. should be in conformity with the provisions of the Indian Succession Act, 1925 and must be by a person competent to make it.

Competency of person to make the will

Every person of sound mind not being a minor can execute a will. Persons who are deaf, dumb or blind are not incapacitated for making a will, if they are able to know what they do by it. A person who is ordinarily insane may make a will during an interval in which he is of sound mind. 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. The testator should be capable of sound and disposing mind and memory.

The declaration should be relating to the testator’s property and the testator should intend to dispose off his property after his death. If the declaration is not to take effect or if the testator wanted to carry out the intention made in the declaration immediately, the instrument will not be a will, the will should be revocable during the lifetime of the testator. If the instrument is intended to come into effect with immediate effect and to be final and irrevocable, it will not be a will.

Law relating to wills

The will made by any Hindu, Buddhist, Sikh or Jain is governed by the provisions of Chapter VI of Indian Succession Act, 1925. However, the provisions of the Indian Succession Act, 1925 are not applicable to Mohammadans, who can dispose off the property by a will in accordance with the Muslim Law. Under Muslim Law, the will executed by a Mohammadan is not required to be probated.

Execution of will

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 rules.

Signature of the testator on the will

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 will should be dated.

Attestation

‘The will shall be attested by two or more witnesses. The attestation by the witnesses should be by the signatures of the witnesses and not by their mark and the attestation should be done after the testator has executed the will and not before. The attesting witnesses need not know the contents of the will and the testator need not disclose the nature or contents of the document.

Property, which can be, disposed off by Will

Any movable or immovable property can be disposed off by a will by its owner. Under Mitakshara Law, a Hindu coparcener could not dispose off his undivided coparcenary property by will, even if other coparceners consented to it. But 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. The interest of a male Hindu in a Mitakshara coparcenary property is deemed to be property capable of being disposed off by him.

Who can be a devisee under a will

Any person capable of holding property can be a devisee under a will and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person can be a devisee. 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.

Wills by Muslims

Under Muslim Law, every adult Muslim of sound mind can make a will. A minor or a lunatic is not competent to execute a will. Though under Muslim Law, a person gets the majority at the age of 15 years, but in India, the case of will is governed by the Indian Majority Act according to which the minority terminates at the age of 18 years, but if the guardian has been appointed by the Court for the minor, the minority will terminate at the age of 21 years. The legatee can be any person capable of holding property and bequest can be made to non-Muslim, institution, and charitable purposes. A bequest can be made to an unborn person and a will in favour of a child who is born within six months of the date of making the will can be a legatee. But according to Shia Law, a bequest to a child in the womb is valid, even if the child is in the longest period of gestation i.e., ten lunar months.

The property bequeathed must be capable of being transferred and the testator should be the owner of the said property. The property bequeathed should be in existence at the time of death of the testator, even if it was not in existence at the time of execution of the will. A Muslim cannot bequest his property in favour of his own heir, unless the other heirs consent to the bequest after the death of the testator. The person should be legal heir at the time of the death of the testator. However, under Shia Law, a testator may bequest in favour of his heir so long as it does not exceed one third of his estate and such bequest is valid even without the consent of other heirs. The consent can be given before or after the death of the testator. But if the entire estate is bequeathed to one heir excluding other heirs entirely from inheritance, the bequest will be void in its entirety. According to Sunni Law, the consent by the heirs should be given after the death of the testator and the consent given during the lifetime of the testator is of no legal effect. Under Shia Law, the consent by the heirs should be free and a consent given under undue influence fraud, coercion or misrepresentation is no consent and the person who has given such consent is not bound by such consent. The consent by the heirs can be given either expressly or impliedly. If the heirs attest the will and acquiesce in the legatee taking possession of the property bequeathed, this is considered as sufficient consent. If the heirs do not question the will for a very long time and the legatees take and enjoy the property, the conduct of heirs will amount to consent. If some heirs give their consent, the shares of the consenting heirs will be bound and the legacy in excess is payable out of the shares of the consenting heirs. When the heir gives his consent to the bequest, he cannot rescind it later on.

Principle of rate able abatement in case heirs does not give consent.

Under Hanafi Law, if a Mohammedan bequest of more than one?third of the property and the heirs does not consent to the same, the shares are reduced proportionately to bring it down to one?third. Bequests for pious purposes have no precedence over secular purposes, and are decreased proportionately. Bequests for pious purposes are classified into three categories:

(i) Bequest for faraiz i.e. purposes expressly ordained in the Koran viz. hajj, zakat and expiation for prayers missed by a Muslim.

(ii) Bequest for waji-bait i.e. purposes not expressly ordained in the Koran, but which are proper viz. charity given for breaking rozas.

(iii) Bequest for nawafali i.e. purposes-deemed pious by the testator, viz. bequest for constructing a mosque, inn for travellers or bequest to poor. The bequests of the first category take precedence over bequests of the second and the third category and bequests of the second category take precedence over those of the third.

Under Shia Law, the principle of rate able abatement is not applicable and the bequests made prior in date take priority over those later in date. But if the bequest is made by the same will, the latter bequest would be a revocation of an earlier bequest.

No writing necessary

Under Muslim law, a will may be made either orally or in writing and though in writing, it does not require to be signed or attested. No particular form is necessary for making a will, if the intention of the testator is sufficiently ascertained. Though oral will is possible, the burden to establish an oral will is very heavy and the will should be proved by the person who asserts it with utmost precision and with every circumstance considering time and place.

But if the marriage of a Muslim has been held under Special Marriage Act, 1954, the provisions of Indian Succession Act, 1925 shall be applicable and he cannot execute a will under Muslim law.

Revocation of will by a Muslim

The testator may revoke his will at any time either expressly or impliedly. The express revocation may be either oral or in writing. The will can be revoked impliedly by testator transferring or destroying completely altering the subject matter of the will or by giving the same property to someone else by another will.

Registration of wills

Though it is not necessary to register a will, but the Law recognizes a Registered will when the execution of a will is disputed and when there is an unregistered will. The provisions relating to registration of the will have been given in sections 40 and 41 of the Indian Registration Act. The testator, after his death, or any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub Registrar for registration. No time limit has been prescribed for registering the will and a will may be presented for registration at any time.’ A will presented for registration by the testator may be registered in the same manner as any other document. A will 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;
(b) that the testator is dead; and
(c) that the person presenting the will is entitled to present the same.

The registration of will is not the proof of the testamentary capacity of the testator, as the Registrar is not required to make an enquiry about the capacity of the testator except in case the testator appears to him to be a minor or an idiot or lunatic.

Codicil

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. The codicil is generally made to make slight changes in the will, which has already been executed. A codicil cannot alter a will more than what is necessary to carry out the testator’s intention as evidenced by the will and the codicil.

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. The codicil is generally made to make slight changes in the will, which has already been executed. A codicil cannot alter a will more than what is necessary to carry out the testator’s intention as evidenced by the will and the codicil