TESTAMENTARY SUCCESSION

(PART I)
- By DOLLY BHARTI, ASSOCIATE. LEX INDIS LAW OFFICES

Testamentary Succession (Part I) – Explains Succession in a General Sense, Testamentary

Succession & Its Types and Its Basic Requirements.

1. INTRODUCTION

The law of succession is one of the most important branches of personal laws. Succession is a
mode of devolution of property from a man to his immediate heirs after his death and how the
property is devolved or distributed depends on the owner of the property.

The laws dealing with intestate and testamentary succession in India are distinct and their
application depends on the influence like the religion of the parties, domicile, community, type of
marriage etc. there is further divergence in such laws based on the consideration like schools and
sub- schools viz. Mitakshara and Dayabhaga schools of Hindu Law and Hanafi and Shia School
for Muslim law. (Paras Diwan, 2006). These considerations or elements, are the basic roots of
multiple succession laws which are applicable in India.

2. TESTAMENTARY SUCCESSION

A Will is a solemn document by which a dead man entrusts to the living the carrying out of his
wishes. Sec 2(h) of Indian Succession Act, 1925 (Act) provides definition of Will “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 Will takes effects only after the death of the testator. A Will is
necessarily ambulatory till death i.e. it may be revoked in the testator’s lifetime. If an instrument
is irrevocable then it cannot be a Will. If it is a Will, then it can be revoked by the testator even if
there is a clause in it purporting to make it irrevocable. As Lord Coke said in Vynior's case1 the
Court held that "If I make my testament and last Will irrevocable, yet may I revoke it, for my act
or my words cannot alter the judgment of the law to make that irrevocable which is of its own
revocable."

2.1.TYPES OF WILLS IN INDIA

2.1.1. PRIVILEGED WILL AND UNPRIVILEGED WILL

PRIVILEGED WILL:

A will is said to be a privileged Will when the testator is

a) any soldier employed in an expedition or engaged in actual warfare, or;

b) an airman so employed or so engaged;
c) a mariner at sea.

When the testator is anyone else the Will is unprivileged (Sec. 65). The principles governing the
making of a privileged Will are as follows:

1. It may be made orally by declaring the testamentary intentions before two witnesses
present at the same time. Such a Will becomes void after one month if the testator is
still alive and has ceased to be entitled to make a privileged Will.

2. If it is in the handwriting of the testator, it need not be signed or attested.

3. If it is signed by the testator, though the body of the Will is not written by him, it need
not be attested.

1
7 ER. 597
 4. Even if the instrument was not written by or signed by the testator, if it was written by
his directions or recognised by him as his will, it shall be deemed to be his Will.

5. Instructions in the writing of the testator for preparing the Will are treated as his Will
even if he had died before the instructions are carried out.

6. Even verbal instructions for preparing the Will, if given in the presence of two
witnesses, if they have been reduced into writing in his lifetime though not in his
presence and though not read out to him, the instructions are deemed to constitute a
Will.

UNPRIVILEGED WILL

When the testator is anyone other than those mentioned above, then the Will is an
unprivileged (Sec. 65).

2.1.2. Conditional or Contingent Wills

A Will can be expressed to take effect only in the event of satisfying certain conditions or can
be contingent upon other factors. Such a Will, which is valid only in the event of the happening
of some contingency or condition, and if the contingency does not happen or the condition
fails, is called a conditional or contingent Will.

2.1.3. Joint Wills

Joint Will is a type of Will wherein two or more persons agree to make a conjoint Will. If a
Joint Will intends to take effect after the death of both persons, then it would not be enforceable
during the life-time of either. The person at any time during the joint lives or after the death of
one can revoke the joint will.

2.1.4. Concurrent Wills

Concurrent Wills are written by one person wherein two or more Wills provide instructions for
disposal of property for the sake of convenience. For instance, one Will could deal with the
disposal of all immovable property whereas another Will deals with the disposal of all movable
property.
 2.1.5. Mutual Wills

In a Mutual Will, the testators confer upon each other reciprocal benefits. A husband and wife
will execute a mutual will to pass on all benefits to the other person during their lifetime.

2.1.6. Duplicate Wills

The testator will create a duplicate will for the sake of safety or safekeeping with a bank or
executor or trustee. However, if the testator destroys the Will in his/her custody, then the other
Will is also considered revoked.

2.1.7. Sham Wills

If a document is deliberately executed with all due formalities purporting to be a Will, it will
still be nullity if it can be shown that the testator did not intend it to have any testamentary
operation, but was to have only some collateral object. One thing must be borne in mind that
the intention to make the Will is essential to the validity of a Will.

2.1.8. Holograph Wills

The testator writes this holograph Will entirely in its own handwriting.

2.2. RULES OF CONSTRUCTING A WILL

Although there is no proper rule or format for drafting a Will under law, but there are few points
which should be taken into consideration while drafting, so that in future after the death of the
testator there should not be any confusion arises regarding the Will. Sec. 63 of the Act states one
of the requirements for execution of a Will which needs to satisfy to make the Will Valid.

1. Signature of Testator: Sec. 63 (a) of Act The testator shall sign or affix his mark to the
will or it shall be signed by some other person in his presence and by his direction.
 The Madras High Court held in Radhakrishna v. Subraya2 that if a Will is executed by
affixing a mark, the mark should be fixed by the testator himself. So when the testatrix
merely touched the pen and gave it to another who affixed the mark, it was held that there
was no valid execution.
The Signature to mark shall be so placed that it shall appear that it was intended thereby to
give effect to the writing as a Will.

2. Attesting witnesses: Sec. 63(c) The Will shall be signed by two or more attesting
witnesses. For attestation to be valid, the witnesses should sign (or make their mark) in the
presence of the testator but it is not necessary that they should both be present at the same
time. Further, they need not actually see the testator executing the Will. They can attest on
the basis of acknowledgment of execution by the testator.

In Nagulapati Lakshmamma v. Mupparaju Subbaiah3, the Supreme Court opined that Sec.
63 of the Indian Succession Act, 1925 makes a clear distinction between testator and
attestors. The Testator may sign himself or put a mark by himself or direct some other
person to sign on his behalf and in his presence. Such privilege or power is not extended
to an attesting witness.

3. No Technical Words Necessary: Sec. 74 provides that technical words or terms need be
used in a Will. All that is necessary is to use words, which clearly conveys the intentions
of the testator. The intention will be given effect to without insisting upon any technical
words.
In case the testator is illiterate, the will should be executed in a language which the testator
can comprehend along with being understood by the attesting witness or third attesting
witnesses.

4. Details of the property: details of all assets and properties should be stated very clearly
in the Will. Each immovable property that is the subject of the Will must be described in

2
40 Mad. 550.
3
AIR 1998 SC 2904 : (1998) 5 SCC 285 : JT 1998 (3) SC 253.
 clear terms as possible. Vague descriptions like “that ancestral house in Delhi” can make
it very difficult for the beneficiaries to claim the property. If the reference is to movable
properties like bank accounts and shares, one should either describe them in general terms
like “all bank accounts and equity shares in my name” or may describe them in specific
terms. If some of the movable properties go to one beneficiary and some to another, the
specific descriptions should be such that a court is not confused. The testator should
describe all his properties owned at the time of execution of the WILL and should include
a Clause in the Will stating that anymore/additional properties which are acquired/ owned
by him at the time of the death should be distributed in the prescribed manner.

5. Description of Beneficiaries – Each beneficiary / legatee should be identified by the full

name as well as by relation (if any) to the testator. Though it is not customary, it helps if
more details about the beneficiary such as approximate age, address, father’s name and
some identification number is also mentioned.

6. Numbering of paragraphs & Pages- though there is no legal requirement. However, it

recommended to number the paras and pages so that its clear and avoids confusions later.

2.3. FORMALITIES IN MAKING A WILL

There is no format prescribed in Law to draft a Will. In order to make a valid Will, it should be
duly signed by the testator and attested by two witnesses.

Stamp Duty: A Will need not be made on stamp paper. No stamp duty is also required to be paid
for executing a Will or a codicil.

Registration: Under section 18 of the Registration Act the registration of a will is not compulsory
and depends on the choice of the testator. A registered Will has more legal value against challenges
about the mental capacity of the testator to make a Will, as the personal appearance of the testator
before a government official with the original Will adds to the reliability and trustworthiness of
the Will. A registered Will reduces the chances of challenges of a Will like being forged, etc.
Registration is advised if there is a possibility that the Will be challenged by a natural heir (who is
denied in the Will what he would have inherited if the testator had died intestate). Registration is
also advised if one or more of the beneficiaries are likely to be dissatisfied with the Will.

3. CONCLUSION

A Will or Testament is a legal document which expresses the testator's wishes as to how their
property is to be distributed after their death to the beneficiary (s) and names one or more persons,
the executor, to manage the estate until its final distribution. Therefore a Will to be Valid is the
most important element which needs to be satisfied and if a Will is invalid then the question of
legality would arise and then after the death of the testator the properties or the assets would not
be distributed as per the clauses of the Will but by the intestate, which would be opposite to the
initial choice of the testator. Hence, all the basic requirements under the Act should be satisfied
while executing a Will.