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Overview Of Wills Under Hindu Law

As the term will indicates, it signifies a wish, desire, choice etc., of a person. A person expresses his will as regards the disposition of his property. The Act defines a will to mean "the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death".

The Hindu Succession Act, 1956, applies to any person who is a Hindu, Buddhist, Sikh, Jain and to any other person who is not a Muslim, Christian, Parsi or Jew by religion. Clause (i) of section 5 of the Hindu Succession Act provides that the said Act does not apply to any property, succession of which is regulated by the IS Act by reason of the provisions contained in section 21 of the Special Marriage Act, 1954.

Sec. 21 of the Special Marriage Act, 1954, reads as under:

"Notwithstanding any restrictions contained in the IS Act, 1925, with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this section that Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestates) had been omitted.

Part VI of the Indian Succession Act deals with the testamentary succession.
Any property can devolve in two ways:
  1. Testamentary Succession:
    Where any person governed under the Act leaves behind any will or codicil which instructs the executor how the property has to used or those who have rights over that property.
  2. Intestate Succession:
    A person is said to have died intestate when he dies without making any testamentary disposition concerning any of his properties.

Will is defined under section 2(h) of The Indian Succession Act, 1925 as follows:
"Will" means the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. Characteristics:
The essential characteristics of a will are as follows:
  1. It is a legal declaration of the intention of the testator;
  2. The declaration is with respect to the testator's property;
  3. The intention manifests only after the testator's death, i.e., posthumous disposition of his property. Till the testator is alive, the will has no validity. He can dispose of all his properties in a manner contrary to that stated in the will and such action would be totally valid. E.g., A makes a will bequeathing all his properties to his brother. However, during his lifetime itself, he transfers all his properties to his son with the effect that at the time of his death he is left with no assets. Such action of the testator cannot be challenged by his brother on the ground that he was bound to follow the will since the will would take effect only after the death of the testator. In this case as the property bequeathed would not be in existence, the bequest would fail.
  4. The will can be revoked at any time by the testator in his lifetime. Thus, the will is a testamentary document executed by a living person which takes effect on his death. A will may also be called a 'testament'. A will can never be irrevocable. The very nature of a will is such that it the person making it can change it as often as he likes.

For a valid will conditions must be satisfied. According to section 63 of the Indian succession act, 1925:

  1. The testator should sign or affix his mark. (e.g., thumb mark)
  2. The Will must be attested by 2 or more witnesses.
  3. The witnesses must have seen the testator sign or affix his mark to the Will.
  4. Each witness shall sign the Will in the presence of the testator.
  5. The witness should not be a beneficiary under the Will.
In general, the order of preference to distribute asset to legatees and their alternates is:
  1. Spouse
  2. Children
  3. Parent(s)
  4. Brothers/Sisters
  5. Other Relatives
  6. Friends. Many people prefer giving something to charity too.

Rules governing transfer of property through will:
  1. The Indian Succession Act, 1925
  2. The Code of Civil Procedure, 1908
  3. The Indian Registration Act, 1908
  4. The Indian Stamp Act, 1899

Wills made are of many types such as:
  1. Conditional / contingent will
    A conditional or contingent will is one which depends for its operation upon the happening of a specified condition or contingency. If the condition fails, the will is inoperative and void thereafter.
  2. Joint will
    A joint will is a legal document executed by two (or more) people, which merges their individual wills into a single, combined last will and testament. Like most wills, a joint will lets the will-makers name, the person who will be getting their property and assets after they die. Joint wills are usually created by married couples. In such Joint Wills when all the testators are alive, a single testator cannot revoke the will alone. He/ She would require the consent of other testators to revoke their joint will. Only when all other testators have died, the sole surviving testator can revoke the will alone.
  3. Mutual will
    Mutual will is a type of will, usually executed by a married or committed couple, which is mutually binding. After one party dies, the remaining party is bound by the terms of the mutual will.
  4. Duplicate will
    As the name suggests, when there are two copies of a will, then those wills are called Duplicate Wills. There are two copies of the will although it is considered as a single will. It is very simple to create a duplicate of the will. The testator has to make a second copy of the will and shall sign it and get it attested in the way that he did for the original will as per Section 63 of the Indian Succession Act, 1925. One copy can be kept with the testator and the other might be kept in safe custody somewhere like in a bank locker, with a trustee, the drafting attorney or with the executor. The testator with an intention to protect the execution of the will after his death makes a copy of the will. If the testator destroys the copy of the will that he has in his custody then, that would automatically revoke the other will.
  5. Concurrent will
    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.
  6. Unprivileged Will
    Will created by a person who is not a soldier employed in an expedition or engaged in actual warfare or a mariner at sea is known as an unprivileged Will. For an unprivileged Will to be valid, it must satisfy the following conditions:
    • The person creating the Will must sign or affix his/her mark to the Will. Else, some other person should sign as per the directions of the testator (Person creating the Will) in his/her presence.
    • The signature or mark of the testator or the signature of the person signing for the testator must be placed so that it appears that it was intended to give effect to the writing as Will.
    • The two or more witnesses should attest to the will. The witnesses must have seen the testator sign or affix his mark to the Will or has seen some other people sign the Will, in the presence and by the direction of the testator.
  7. Privileged Will
    Privileged wills are wills that may be in writing or made by word of mouth by those in active services like a soldier, airman or mariner. The legal requirement for the validity of a privileged Will has been reduced to enable certain persons to quickly make a Will. The following conditions are applicable for a privileged Will:
    • The testator writes the whole will with his own hand. In such a case, it need not be signed or attested.
    • The testator should sign the privileged Will written wholly or in part by another person. In such a case, there is no requirement for attestation.
    • A Will written wholly or partly by another person and not signed by the testator is a valid Will if it is proved that it was written by the testator's directions or that the testator recognized it as his/her Will.
    • A half-completed privileged Will is also considered valid if it is proved that non-execution was due to some other reason and does not appear to be an abandonment of intentions to create a Will.
    • A privileged will can be made by word of mouth by declaring intentions.
    • If a soldier or airman or mariner has given written or verbal instruction for the preparation of a Will but has died before it could be prepared and executed. And such will is a valid Will.
    In the case of Sunita Shivdasani vs. Geeta Gidwani, it was held that although privileged wills are oral but requirements of Section 66[6] of the Act must be complied with including the presence of two witnesses at the time when the oral will is made. A will made by word of mouth is null at the expiry of one month.
  8. Sham Wills
    Sham Wills are executed but held invalid if the testator does not intend to execute as per his/her wishes. As per the Indian Succession Act, a Will made by fraud or coercion or by taking away the free agency of the testator is considered invalid.
  9. Holograph Wills
    The testator writes this holograph wills entirely in its own handwriting.

Capacity of testator and legatee:
Every person who is competent to contract may make a will but he must be major, sound mind and willing to write a Will. Any person who is the sole owner of a self-acquired property can bequeath by way of will. A person of unsound mind can also make a will but only in lucid intervals. A Will cannot be made by some persons i.e. minors, insolvent, persons disqualified under any law by the court.

A Will executed by a minor is void and inoperative though a testamentary guardian can be appointed for the minor to dispose the property. A Will can be made by the deaf and dumb person by showing consent through writing or gestures in sign language. Nothing prevents a prisoner or alien in India from drawing a Will. As per Section 59 of the Indian Succession Act, 1925, the person making the Will must be of:
  1. Age
  2. Sound mind
Furthermore, the section states that a person ordinarily of unsound mind may make a Will during the interval of the soundness of his/her mind. The section prohibits a person from making a Will when in a state of intoxication or illness which makes him/her incapable of understanding the consequences of the act.

Any person capable of holding property can be a legatee under a will and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person can be a legatee. 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. If the minor person has been named as legatee by a testator then a guardian should be appointed by the testator himself to manage the bequeathed property.

In the case of Sanjeev Juneja vs. State & Ors.,the court held that the expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 which means the legal declaration of "the intention" by the testator, with respect to his property, which he desires to be carried out after his death. Also Section 59 of Indian Succession Act, 1925 governs the capability of person to make a Will.

How a will is made and executed

STEP 1: Firstly, all the essentials of a will as mentioned need to be adhered to.

Essentials include:
  • Details of the testator-The name, age, address and other details
  • Declaration -It is very important that the testator declares that he/she is of sound mind and free of any coercion while drawing the will.
  • Details of the beneficiary-The details of who shall be benefitting out of this will and to whom shall the assets be divided should be given as their name, age, address and relation to the testator.
  • The executor of the will -It is very important to appoint an executor who would ensure that the will is carried out according to the directions provided by the testator. The name, age, address and relation to the testator should be specified as well.
  • Details of property and assets - It is pertinent to list out all the details of the assets and properties that a testator has, and which are the ones that shall be covered in the will. He/she can also list out any specific assets that are there.
  • Division of share - The share that each beneficiary has on the property or the specifics of who shall get what is to be listed in full detail. If the asset is to be given to a minor, then a custodian for the minor should also be listed in the will.
  • Specific Directions - The testator should give directions in terms of executing the Will and should specify if there are any instructions
  • Witness - There should be a signature by the testator in the presence of at least 2 witnesses. The witnesses do not need to know the details of the will they just have to verify that the signature by the testator was done before them. Witness shall not be the beneficiary of the will signed.
  • Signature - The testator should sign with the date on the will after the last statement.

STEP 2: It is advisable to consult the family lawyer before drafting the will. A will can either be drawn by the testator himself or through his lawyer.

STEP 3: A will is executed by ensuring the signature of the testator in the presence of the two witnesses and their signatures as well.

STEP 4: It would be beneficial if a will is registered and properly stamped as it helps in ensuring proper execution.

Section 71 of the Indian succession act deals with the alterations made in the will. It says that no alteration shall be made in the will to be done after the execution of the will and if so done, it shall have no effect. But if the alterations done are having the signature of the testator and the attesting witnesses, then the same can be executed. Alterations are not done in the original will rather on a separate document known as codicil and the same is attached with the original will.

In the case of Dayanandi vs. Rukma D Suvarna & Ors, the court observed that no signature of the testator was made in the margin or at other part of will or near the alterations made, so the court stated that if such alterations have not been made in the manner prescribed under Section 71, such alterations shall have no effect.

The execution of a will shall only take place after the death of the testator and not before that. The will is made by the testator but the same is executed by another person called executor, a legal representative of the testator. The executor should check that the testator has signed and affixed the will in the presence of two or more witnesses. The will shall be executed if no other party is dissatisfied with the things mentioned in the will and to whom it is being transferred.

In the absence of contrary intention in the will, the description of the properties in the will shall be deemed to refer to and include the property answering that description at the death of the testator. Ittianam and Ors. v. Cherichi alias Padmini [(2010) 7 SCALE 495]

The statement of objects and reasons of the Hindu Wills Act, 1870 (now repealed) brings out the reasons for a marriage amongst the Hindus, Buddhists, Sikhs or Jains not having the effect of revoking a Will as the marriage does not create such a change in the testator's condition as to raise a presumption that he would not adhere to a Will made previously.

Revocation of Wills can take place in the following manner:
  1. By execution of a subsequent will
  2. By some writing and declaring an intention to revoke the will
  3. Burning of the will
  4. By tearing of the will
  5. Otherwise destroying the will

Property which may be disposed by will:
Prior to the Hindu Succession Act, 1956, a Hindu could not, by will, bequeath property which he could not have alienated by gift inter-vivos. Even after the Hindu Succession Act, a Hindu cannot, by will, so dispose of his property as to defeat the legal right of his wife or any other person to maintenance mentioned in sections 18 to 22 of the Hindu Adoptions and Maintenance Act, 1956.

However, the above rule that a Hindu cannot, by will, bequeath property which he could not have alienated by gift inter-vivos is now altered by Section 30 of the Hindu Succession Act, 1956, which permits a member of a Mitakshara coparcenary to dispose of, by will, his undivided interest in the coparcenary property.

As regards property which a Hindu could dispose of by will, the following five propositions under the ancient uncodified Hindu law may be noted:
  1. A Hindu could not, by will, dispose of his entire property, so as to defeat the claim of his wife and of other persons who are legally entitled to maintenance from him.
    Promothanath v. Nagendrabala, 12 C.W.N. 808
  2. The power to make wills could be exercised in regard to the separate or self-acquired property of the testator. In this respect, there was always an agreement among all schools of Hindu law. In regard to coparcenary property, the power to make wills differ according to different schools of Hindu law. The Dayabhaga School recognised the right of a coparcener to dispose of his interest in the joint family property by will. According to the Mitakshara School, however, no coparcener could dispose of his undivided interest by will, even if the other coparceners consented to such disposition. The right of survivorship prevailed against any will made by the coparcener. (However, today, under S. 30 of the Hindu Succession Act, a Hindu may dispose of, by will or other testamentary disposition, even his interest in a coparcenary property.)
  3. The owner of an impartible estate could dispose of such estate by will, except when the nature of the estate did not admit of such alienation or there was a special custom prohibiting such alienation.
  4. A Hindu female could dispose of her stridhana property by will, except when the stridhana was non saudayika, in which case the consent of the husband was required to validate the will. (However, now under S. 14 of the Hindu Succession Act, any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, becomes her absolute property, and she becomes the absolute owner of such property and is, therefore, entitled to dispose of such property by will.
  5. A sole surviving coparcener could dispose of his property by will, but such disposition would be inoperative against a subsequently born or adopted son. This rule was true in regard to coparcenary property, but a Hindu adopting a son could make a will in regard to his separate property, and the adopted son could not challenge that right. Sri Raja Venkata Surya v. Court of Wards, 22 Mad. 383.

Will is considered to be the voice of the testator and it conveys how the person wants his property to be used after his death. Such wills must be protected and proper registration helps in validating the will. A person cannot give his ancestors property in the form of a Will but he can make a Will only of his Self-Acquired property.

A Will does not involve any transfer nor affect any transfer inter-vivos but it is an expression of intending to appoint a person who will look after the properties after his (testator's) death. A Will regulates the succession and provides for succession as declared by the testator.

  • Family Law II by Poonam Pradhan Saxena 4th edition
Bare Act:
  1. Indian Succession Act,1956
  2. Hindu Succession Act,1956
  3. Hindu Wills Act,1870
  4. Hindu Adoptions And Maintenance Act, 1956.

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