Will and Codicil

WILL AND CODICIL
MEANING
Will = intention, determination; to dispose of property by a will to ordain by the

force of authority, law, etc.
Definition: Section 2 (h) of the Indian Succession Act, 1925 defines "Will“
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.
Codicil :Section 2(h) of the Indian Succession Act, 1925 defines "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.
PURPOSE OF THE WILL: A will may be made for the following
purposes:
(1) for disposal of the property of the testator after his death and of
appointing an executor
(2) for appointing a testamentary guardian;
(3) for exercising a power of appointment and
(4) for revoking or altering a previous will
ESSENTIALS OF A VALID WILL
The essential characteristics of a will are:
1. There must be a legal declaration.
2. The declaration must be with respect to the property of the testator.
3. The declaration shall be enforceable after the death of the testator.
4. The declaration shall be capable of revocation by the testator before his
death.
1. LEGAL DECLARATION:
A will must be a legal declaration. The testator must be a competent person. He

must have capacity to transfer his property. A minor cannot make a will. The
declarant must be possessing sound health of mind. Therefore, a lunatic cannot
make a will. Bodily ill health does not prevent a person to make a will. A person
suffering with T B or Cancer can make a will. A will must fulfil all requirements.
It must be made with free will. It must not be made by coercion, threat, undue
influence and any other violent means. There must be a lawful object. The form
and order of law should be observed, viz. signature, attestation, etc.
2. PROPERTY OF THE TESTATOR:
The testator must have possessed certain property moveable or immoveable
on his own name. The declaration of the will must relate to the entire
property on some of the property of the testator He must deciare his will
with a free mind He must show his intention to dispose his property in the
wills. A person cannot dispose any property, which is not his "Nemo dat
quod non habet." (No one can pass a better title than what he has.)
3. AFTER THE DEATH OF THE TESTATOR:
The declaration of a will regarding the disposal of the property of the testator
must be intended to take effect after his death only. If the testator wants
immediate transfer of property, such declaration is not a will.
4. REVOCATION OF WILL:
It is the most essential and important characteristic feature of will A Will is
said to be 'ambulatory' (walking). The testator may revoke his will at any time
during his life period. The testator is having full powers to add or delete any
portion to the will or he may write a new will in place of the former. He may
add a "codicil to his original will. 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. He may revoke a previous will, and
write a new will according to his own will and pleasure. A will cannot be
irrevocable.
IMPORTANT POINTS:
A FORM OF WILL:
There is no prescribed form of declaration of will. A will may be in any form
out must be enforceable and effective by law. A will must be signed document.
The will must show animus (intention) of the testator to dispose the property,
as he likes. The declaration must satisfy the following two tests:
(i) That it was the intention of the writer of the paper to convey the benefits by
the instrument which would be conveyed by it, if considered as a will, is the
writer had the animus testandi. A will though formally executed as such, will
not be valid, if there were no animus testandi, e.g if it was written in jest.
(ii) That death was the event that was to give effect to it. If the writing confers
or is intended to confer benefits inter vivos, without any reference to the death
of the party conferring it, it cannot be established as a will.
B. LANGUAGE OF WILL:
The declaration of a will may be in any language. If the will is in a language
not known to the testator, the same should be read over and explained to him by
some competent person so that he may fully understand the nature, contents
and implication of the document and the person so explaining shall make an
endorsement or the will to that effect.
In writing a will, no technical words phrases are required A simple language is
sufficient denoting the intention of the testator The declaration may be written
by ink or type written If properly drawn even pencil writing is also permissible
If the testator himself writes the declaration of will, it is well and good. But if it
is written by a person who himself benefits by it is void, and is looked with
suspicion and doubtful eyes (Case-law: Barry vs. Butlin)
C. STAMP:
Wills and codicils can be written on white paper. No stamps are required Wills
and
codicils are exempted from stamp duty
D. REGISTRATION:
Registration of wills is not compulsory However, if anybody wants to register
his will, he may do so It is only optional However, if a client seeks the advice
and assistance of the advocate, it is always better to advice the client to register
his (client's) will Registration avoids future complication and lessens the
burden of proof.
E. DIFFERENT KINDS OF WILLS:
(i) Oral Will: It is an oral will. It is weak. However, if there is a sufficient
number of witnesses, it will take into effect. Where the Indian Succession Act,
1925 is applicable, they are not entitled to oral will. Mohammedans are entitled
to make oral wills.
(ii) Holograph Will: A Holograph will is a will written by the testator himself
(iii) Inofficious Will: A will which is not in consonance with the testator's
natural love and affection, and moral duties is called an "inofficious will This
type of will is seen with suspicious and doubtful eyes.
(iv) Mutual Will: A will is mutual when the two testators confer upon each
other Reciprocal benefits as by either of them constituting the other his legatee,
i.e, when the executants fill the roles both testator and legatee towards each
their, but where the legatees are distinct from the testators, there can be no
question of mutual will . It implies two separate wills executed on the same day
containing similar provisions
(v) Joint Will: A joint will is a will made by two or more testators contained in a
single instrument duly executed by each testator disposing either of other
separate properties or their joint property. By joint will is meant a single
instrument by which two persons give effect to their testamentary wishes.
(vi) Contingent or Conditional Will: A Will may be contingent upon the
happening of an event so that if the event does not happen the will has no
effect
(vii) Duplicate Will: A testator makes his declaration in two copies. He
retains one copy and deposits other copy in custody of another person
F. LIMITATION ON MOHAMMEDAN'S WILL:

The power of a Mohammedan to dispose the property by will is limited in
two ways. He cannot bequeath more than one-third of his property. (He
cannot bequeath to his own heirs There is no form of Vasiyyat A will may
be made either verbally or in writing.
G. AGREEMENT NOT TO REVOKE:
A person first writes a will. Thereafter, he enters into an agreement with
beneficiaries that he will not revoke the will. After this agreement, explain is
the testator entitled to revoke his will? Answer is very simple. The testator can
revoke his will. The agreement does not bind him.
H. EXECUTION:
Section 63 of the Indian Succession Act, 1925 imposes the following three rules
regarding the execution of a will:
(a) The testator should sign or shall affix his mark to the will, or it may be
signed by some other person in his presence and by his direction
(b) The signature or mark of the testator, or the signature of the person signing
for him, shall be so placed that it shall appear that it was intended thereby to
give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has
seen the testator sign or affix his mark to the will or has seen some other
person sign the will, in the presence and by the direction of the testator or has
received from the testator a personal acknowledgment of his signature or
mark, or of the signature of such other person, and each of the witnesses shall
sign the will in the presence of the testator, but it shall not be necessary that
more than one witness be present at the same time, and no particular form of
attestation shall be necessary.
• PROBLEM:
A Grandfather wants to bequeath all property to his granddaughter.

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WILL AND CODICIL

Will = intention, determination; to dispose of property by a will to ordain by the

A will must be a legal declaration. The testator must be a competent person. He

F. LIMITATION ON MOHAMMEDAN'S WILL:

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