Family Law II

CIA-3

“Concept of Wills in India”

An Analysis

Name- Dhanush M N
Register Number- 2150113
Class & Section - 4 BA LLB A
Name of the Faculty- Sugandh Saksena
Abstract
In India, the topic of succession is very crucial, this is because of India’s multicultural
environment. India being the melting pot of various religions and cultures has vast variety of
laws, even for succession. While majority of populations succession is governed by their
personal laws there was a need for uniformity and this uniformity came in the form of the
Indian Succession Act, 1925. This Act brought majority of the population under an umbrella.
This paper deeply analyses the concept of wills and also examines how the Indian Succession
Act has impacted the three major religions of India, Hindu, Muslim & Christian communities
in the matter of succession. This paper derives from various sources, mainly articles.
Establishing from this paper is that the Indian Succession Act,1925 has had a significant
impact on the Christian and other religious masses than Hindu and Mohammedan community
their personal laws override the statutory act.
Introduction
A testament or will is a legal document that allows a person to express their wishes regarding
how their property will be distributed following their death. They also name one or more
individuals as their executor. Although the terms "testament" and "will" were initially used
interchangeably, they have since been used differently. For instance, the former refers to the
disposition of personal property, while the latter refers to real estate. The word "will" can also
be used to refer to both real estate and personal property. In addition, a will can create a
testamentary trust, which can only be effective following the testator's death.
Definition – “Section 2(h) of the Indian Succession Act, 1925 provides that a person's will is
the legal declaration of his or her intention to transfer or dispose of his or her property after
death. According to the Corpus Juris Secundum, a 'will' is a document that a man can make to
describe his or her intentions regarding the future disposition of his or her property.”1
A testament or last will is a legal document that describes a person's final wishes regarding
their possessions and other personal property. It can be used to leave items to a different
person or group, or it can be used to donate them to charity. Besides the distribution of these
assets, the document also provides details about the person's other responsibilities, such as the
custody of their children and accounts.
The Indian Succession Act, 1925, provides that a will made by a Buddhist, Jain, Hindu, or
Sikh individual is subject to the provisions of the law. However, this does not apply to those
made by Muslims.
Important Aspects of a Will; -
1. The details of the Testator - As follows: Name, Age, and Address.
2. A Legal Declaration - Is a document that a living individual makes regarding their
intentions or desires. It is not an agreement or settlement, and it should not be used by
the beneficiaries to form a contract or settle a financial transaction. A declaration must
be legal, and it should not be illegal.
3. The Testator's Intention - It is the central idea of a Will, and it is different from a
statement of facts. A Will should not only narrate the present situation, but it should
also contain a clear and comprehensive explanation of the testator's intentions. If a
1
The Indian Succession Act, 1925
 wife makes a Will that states what her deceased husband would have wanted before
he died, it is not a Will. This is because it carries the deceased husband's wishes and
not the testators.
4. The Testator's Property is the only thing that can be considered as the basis for a Will.
This simple rule of thumb ensures that the only thing that the testator can give away is
what they already possess. The Will should also contain details about the various
properties that the testator would like to give away to his beneficiaries. These should
include the name of the company that the property is registered with, the date it was
registered, and the details of the property itself.
5. The details of the multiple beneficiaries should also be included in a Will. These
include the names, ages, and addresses of the beneficiaries, as well as the relationship
between them and the testator.
6. The testator's wishes must be stated clearly in the Will so that they can be carried out
after his or her death. Renunciation during one's lifetime does not create a Will. If the
document wants to split the property among the testator's sons, it can't be called a
Will.
7. If the Testator wants to distribute his property to a minor, then he should ensure that
the minor's guardian is appointed to look after the property until the child's majority
has been attained.
8. An executor is the person who should be appointed to carry out the Will of the
Testator following their death.
9. The testator's signature and date should be clearly shown in the Will.

There are few exclusions for these aspects - The exclusionary provisions of the Testator's will
prevent him from giving away properties that are part of his or her family, or that are
common to other members.

One of the principles that is considered when it comes to the vesting of legacy in a property is
that it should not be postponed. The testator's intention should be decided after considering
all the clauses in the Will.

In a case involving Gnanambal Ammal V. T. Raju Aiyar2, the Supreme Court ruled that the
testator's intention should be the focus of the proceedings when it comes to the construction
of a Will. In a case involving Navneet Lal V. Gokul & Ors3, the court noted that the various
factors that can be considered when it comes to the construction of a Will should be
considered. However, it also said that these factors are only an aid in determining the
testator's intentions. The court cannot give a precise answer as to what the testator intended to
write in his or her Will. It only can interpret the written word in accordance with its expressed
intent.

Why is there a need for Will?

There are four main reasons why one should have a will: -

1. Having a will makes it easier for friends and family to manage the arrangements
following your death.

2
1951 AIR 103
3
1976 AIR 794
 2. Without a will, everything that you own will be distributed according to the law,
which is not the ideal scenario for everyone.
3. Having a will can also help minimize the amount of inheritance tax that you would
have to pay on the value of your property.
4. If you have children or other relatives who rely on you financially, having a will can
be very important.

Who can make a Will?

Section 59 the Indian Succession Act, 1925 provides that making a will requires some special
skills and preparation and sets some conditions on who can make a will.

1. Person should be of sound mind.

2. The person should have attained 18 years/majority.
3. A married woman may make a will as long as she has her own personal interests in
the property and life.
4. A person who is blind, deaf, or dumb can make a will if their interests have not been
altered.
5. An insane individual can also make a will if they were in a state of sanity at the time
of making the will.
6. An ill or drunk individual can make a will if he or she was sober at the time of its
making.
7. An old or sick individual's will can only be valid if it is made without undue
influence, coercion, or fraud.

Types of Wills: -

Privileged Will

A privileged Will can only be made by a 1) Soldier or airman who is engaged in actual
warfare or deployed to an expedition, 2) A mariner at sea can also make a privileged Will.
According to the Indian Succession Act, 1925 a privileged Will can be written or oral and the
Testator does not need to sign it.

A privileged Will can be made by the Testator without the presence of witnesses. It can be
made in exceptional circumstances such as when the person is engaged in dangerous or war
activities. However, Hindus are not allowed to make such privileged Wills since sections 65
& 66 of the Indian Succession Act, 1925 are not listed in the third schedule.

Unprivileged Wills; -

Under Section 63 of the Act, an Unprivileged Will is defined as one that was made by every
testator not being a soldier, airman, mariner, or seaman engaged in actual warfare. This
means that those who do not classify as soldiers or airmen will not be considered to have a
Privileged Will. Unprivileged Wills are the only type of will made by Hindus.

An unprivileged Will has various procedural requirements; -

In order to be valid, the unprivileged will must be signed by the testator and by at least two
witnesses and it needs to be in writing. In accordance with Indian Succession Act, 1925 the
testator must have at least two witnesses to attest the will.

Conditional Wills; -

A conditional will is a type of Will that is dependent on the fulfilment of a condition or event.
A property can be given away according to the Will if a certain condition is met. According
to Section 124 of the Act, a "legacy can't take effect if a certain event doesn't happen before
the time when the fund is payable or distributed"4. This means that a legacy cannot be carried
out if the event does not happen before the time when the fund is declared payable or
distributed. A Will only becomes effective once a condition has been met, which can be in
the form of a precedent or condition following the Will.

Wills under Hindu Law; -

A will is a type of legal document that allows an individual to decide how their assets and
property will be distributed following their death. This concept is recognized under Hindu
Succession Act 1956.

People have the right to sell their property according to Hindu law. A will can be made by
any individual, regardless of their age. It must be signed by the individual making it.

The Hindu Succession Act provides guidelines for the enforcement and interpretation of
wills. It requires witnesses to sign the documents in the presence of the individual making the
will. They must be competent and not be beneficiaries.

A will can be revoked or modified at any point during the lifetime of the individual making it.
This can be accomplished by making a new one or by adding a codicil to the document.

The Hindu Succession Act also provides for certain rights that cannot be affected by a will.
For instance, it disallows the disposition of a woman's Stridhan.

In Hindu law, wills give individuals more control over how their property is distributed
following their death, while also preserving the rights of their beneficiaries and heirs.

The essentials of Hindu Testamentary Disposition (Wills) –

1. The testator must have the necessary capacity to understand the effect of making a
will and the nature of their property. They should also be sound mind and not be
influenced by any influence.
2. The will should be made without coercion or fraud.
3. The will should be in writing and signed by the testator. At least two witnesses should
also sign it.
4. The will should be clear and unambiguous. It should also clearly state the testator's
intentions.
5. The testator should also have the necessary testamentary capacity. This means that
they should be at least eighteen years old.
6. The will should also clearly state the beneficiaries and the property's distribution.
4
The Indian Succession Act
 7. The will should also have a provision for allowing the testator to rescind or alter its
terms during their lifetime.

Although Hindu law generally recognizes both unregistered and registered wills, registered
ones are more reliable and can be more valuable in court.

Wills under Mohammedan Law; -

In Muslim law, a will is known as a "Wasiyya". It is a legal document that outlines the wishes
of a person regarding the distribution of their assets and property after their death.

Under Islamic law, a person is allowed to dispose of one-third of their property through a
will, and the remaining two-thirds are distributed according to the rules of inheritance as
prescribed in the Quran.

The person creating the will (known as the testator) can distribute their property among their
heirs and other beneficiaries, including charities and organizations, as long as it is done in a
fair and just manner.

The will must be made in writing and signed by the testator in the presence of two witnesses.
The witnesses must be sane, adult Muslims who are not beneficiaries under the will.

It is important to note that a will cannot override the Islamic law of inheritance. Therefore,
the distribution of the remaining two-thirds of the property must be in accordance with the
rules of inheritance as prescribed in the Quran.

In addition, a will can be revoked or altered by the testator at any time before their death.

Overall, the concept of wills in Muslim law provides a means for a person to distribute their
property according to their wishes while ensuring fairness and justice for their heirs and other
beneficiaries.

The essentials of Will under Mohammedan Law; -

1. The testator must have sound mind and be capable of making wills. They should also
be knowledgeable about the consequences of such an act.
2. The will should be made voluntarily. It should not be coerced or influenced. The
testator should not be forced to make a will that contradicts their wishes.
3. The testator must be capable of making wills. They should be at least 18 years old and
sound mentally.
4. Formalities - In accordance with the general rule, making a will does not require a
formality- Abdul Manan Khan v. Mirtuza Khan5. A will can be made without writing
or a specific form. In most cases, verbal declarations suffice if the testator's intentions
are clear. A “Wasiyatnama” is a type of will that can be made without the need for
signatures. It can be written completely and does not need to be attested.
5. The will should clearly state the distribution of assets and properties and the names of
the beneficiaries.
6. The will should also comply with Islamic law, such as inheritance rules and
prohibition of certain bequests.
5
AIR 1991 Pat 154
Wills under Christian Law; -

In India, the concept of wills in Christian law is governed by the Indian Succession Act,
1925, which applies to all Christians in the country.

Under Christian law, a person has the right to dispose of their property by way of a will,
subject to certain limitations. The person making the will, known as the testator, must be of
sound mind, and the will must be made voluntarily and without any coercion.

The Indian Succession Act also lays down rules regarding the execution and revocation of
wills. For example, a will must be in writing, signed by the testator, and attested by two
witnesses. Additionally, a will can be revoked or amended by the testator at any time before
their death, provided that they have the capacity to do so.

It is important to note that the Indian Succession Act applies only to Christians, and
individuals of other religions are governed by their respective personal laws with regards to
wills and inheritance.

The essentials of wills under Christian law in India; -

1. The person who makes a will has to have a testamentary capacity, which means that
they are capable of understanding the consequences of what they are doing.
2. Wills must be made freely and without fraud, coercion, or undue influence.
3. The testator should have the intention to make a will and clearly state their wishes
regarding the distribution of their property after their death.
4. In India, the execution of the will must be carried out according to the laws. The will
must be signed by the testator and two witnesses.
5. Revocation: The testator can rescind or alter their will prior to their death.

It should be noted that Christian law allows certain property to be exempted from the
distribution of the will. This includes joint tenancy or properties that are under a trust.

When it comes to making a will, it is important to seek the advice of a competent legal
professional. They should ensure that it is in compliance with all the laws.

Conclusions; -

In conclusion, the concept of wills in India is an important part of family law. The Indian
Succession Act, 1925, governs the creation and implementation of wills in India. Family law
plays an important role in the distribution of property among legal heirs, and the rules of
intestate succession vary depending on the religion and community to which the deceased
person belonged. The concept of wills is constantly evolving in India, with amendments
being made to the laws to reflect changing societal norms and values. The recent amendments
to the Hindu Succession Act have given daughters equal rights in their father's property,
which is a positive step towards gender equality.