Concept of will under Hindu Law

 Q.  21 What is will? Who can make a will? What formalities are necessary for a valid will and in whose favour can it be made?.

Succession by will.-"Will" is not a mode of transfer but it is a mode of succession. It takes effect after the death of the testator. It is always revocable. The will has been defined by Section 3 of the Indian Succession Act, 1925 as, "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."

A Will has been described as a 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 Codicil means an instrument made in relation to a will, and explaining, altering or adding to its disposition and shall be deemed to form part of the will. A codicil is not a will but it is made in relation to a will and is clearly a testamentary document.

Section 30 of the Hindu Succession Act, 1956 provides:

"Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or her in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus."

The Explanation attached to Section 30 lays down that the interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a Tarwad, Tavazhi, Illom, Kutumba or Kavaru in their respective property shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this sub-section.

 

Therefore, the following property can be given or disposed of by will:

(1) Separate or self-acquired property.

(2) The coparcenary property by the Dayabhaga coparcener of his interest only.

(3) The Dayabhaga father can give his property by will, whether ancestral or self-acquired.

(4) Now Mitakshara coparcener can dispose of his undivided interest in the coparcenary property by will.

 

Formerly a Mitakshara coparcener had no testamentary power of disposition over his undivided interest. But now Section 30 of the Hindu Succession Act provides that "Any Hindu may dispose of by Will or other testamentary disposition, any property......

Who Can Make A Will
S.59 of Indian Succession Act provides that every person who is of sound mind and is not a minor can make a Will.

Persons of Unsound Mind

U/s. 59 of ISA the existence of a sound mind is a sine quo non for the validity of the Will. Most of the Wills are not made by young persons who are fully fit but are made by persons who are aged and bedridden Hence, law does not expect that the testator should be in a perfect state of health, or that he should be able to give complicated instructions as to how his property was to be distributed. A sound disposing mind implies sufficient capacity to deal with and understand the disposition of property in his Will -
1) the testator must understand that he is giving away his property to one or more objects.

2) he must understand and recollect the extent of his property 3) he must also understand the persons and the extent of claims included as well as those who are excluded from the Will. In Swifen v. Swifen it was held that the testator must retain a degree of understanding to comprehend what he is doing, and have volition or power of choice.

Minors: A minor who has not completed the age of 18 years is not capable of making Wills. The onus of proof on determining whether the person was a minor at the time of making a Will is on the person who has relied upon the Will. S.12 of the Indian Contract Act also provides that a minor is incompetent to contract.

Essential Features of a Will

A Will can be made at any time in the life of a person. A Will can be changed a number of times and there are no legal restrictions as to the number of times it can be changed. It can be withdrawn at anytime during the lifetime of the person making the Will. A Will has to be attested by two or more witnesses, each of who should have seen the testator signing the Will.
The essential features are:
1. Legal declaration: The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it. Further the declaration of intention must be with respect to the testator’s property It is a legal document, which has a binding force upon the family.

2. Disposition of property: In a Will, the testator bequeaths or leaves his property to the person or people he chooses to leave his assets/belongings. A Hindu person by way of his Will can bequeath all his property. However, a member of an undivided family cannot bequeath his coparcenery interest in the family property

3. Takes effect after death: The Will is enforceable only after the death of the testator
Under section 18 of the Registration Act the registration of a Will is not compulsory. Also, the SC in Narain Singh v. Kamla Devi has held that mere non-registration of the Will an inference cannot be drawn against the genuines of the Will. However, it is advisable to register it as it provides strong legal evidence about the validity of the Will. Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen. It is to be released only to the testator himself or, after his death, to an authorized person who produces the Death Certificate
Since a testamentary disposition always speaks from the grave of the testator, the required standard of proof is very high. The initial burden of proof is always on the person who propounds the Will.

 

Definition of Will & other Related Terms

Will: A Will is a solemn document by which a dead man entrusts to the living to the carrying out of his wishes. S. S.2(h) of Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death Will has been defined in Corpus Juris Secundum as A ‘Will’ is the legal declaration of a man’s intention, which he wills to be performed after his death, or an instrument by which a person makes a disposition of his property to take effect after his death.

Codicil: Codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will. The purpose of codicil is to make some small changes in the Will, which has already been executed. If the testator wants to change the names of the executors by adding some other names, or wants to change certain bequests by adding to the names of the legatees or subtracting some of them, a Codicil in addition to the Will can be made to do so. The codicil must be reduced to writing and has to be signed by the testator and attested by two witnesses. It is also the duty of the court to arrive at the intention of the testator by reading the Will and all the codicils.

Executor: An executor is appointed by the testator, as distinguished from an administrator who is appointed by the court. Where the Will confers the powers to collect the outstanding, pay debts and manage the properties, the person can be said to be appointed as an executor by implication.

Probate: Probate is an evidence of the appointment of the executor and unless revoked, is conclusive as to the power of the executor. The grant of probate to the executor however does not confer upon him any title to the property.

Letter of Administration: Letter of Administration is a certificate granted by the competent court to an administrator where there exists a Will authorizing him to administer the estate of the deceased in accordance with the Will. If the Will does not name any executor, an application can be filed in the court for grant of Letter of Administration for the property.

Attestation of Will: Attesting means signing a document for the purpose of testifying the signature of the executants. Therefore an attesting witness signing before the executants has put his mark on the Will, cannot be said to be a valid attestation. It is necessary that both the witnesses must sign in the presence of the testator but it is not necessary that the testator have to sign in their presence. Further it is not necessary that both the witnesses have to sign at the same time. It is also not necessary that the attesting witnesses should know the contents of the Will.

Kinds of Wills

Conditional Wills: A Will maybe made to take effect on happening of a condition. In Rajeshwar v. Sukhdeo the operation of the Will was postponed till after the death of the testator’s wife. However if it is ambiguous whether the testator intended to make a Will conditional, the language of the documents as well as the circumstances are to be taken into consideration.
Joint Wills: Two or more persons can make a joint Will. If the joint Will is joint and is intended to take effect after the death of both, it will not be admitted to probate during the life time of either and are revocable at any time by either during the joint lives or after the death of the survivor.

Mutual Wills: Two or more persons may agree to make mutual Wills i.e. to confer on each other reciprocal benefits. In mutual Wills the testators confer benefit on each other but if the legatees and testators are distinct, it is not a mutual Will. Mutual Wills are also known as reciprocal Wills and its revocation is possible during the lifetime of either testator. But if a testator has obtained benefit then the claim against his property will lie. Where joint Will is a single document containing the Wills of two persons, mutual Wills are separate Wills of two persons.

Privileged Wills: Privileged Wills are a special category of Wills and other general Wills are known as unprivileged Wills. S.65 of ISA provides that a Will made by a soldier or a airman or a mariner, when he is in actual service and is engaged in actual warfare, would be a privileged Will. S.66 provides for the mode of making and rules for executing privileged Wills. Ss. 65 and 66 are special provisions applicable to privileged Wills whereas other sections relating to Wills are general provisions which will be supplementary to Sections 65 and 66 in case of privileged Wills.

Alterations
S.71 of ISA is applicable to alterations if they are made after the execution of the Will but not before it. The said section provides that any obliteration, interlineations or any other alteration in a Will made after its execution is inoperative unless the alteration is accompanied by the signatures of the testator and the attesting witnesses or it is accompanied by a memorandum signed by the testator and by the attesting witnesses at the end of the Will or some other part referring to the alterations. The alterations if executed as required by the section would be read as a part of the Will itself. However, if these requirements are not fulfilled then the alterations would be considered to be invalid and the probate will be issued omitting the alterations. The signatures of the testator and the attesting witnesses must be with regards to the alteration and must be in proximity of the alteration. Further they should be in the Will itself and not in a separate distinct paper. But if the obliteration is such that the words cannot be deciphered then the Will would be considered as destroyed to that extent.

Execution of a Will

On the death of the testator, an executor of the Will (executor is the legal representative for all purposes of a deceased person and all the property of a testator vests in him. Whereas a trustee becomes a legal owner of the trust and his office and the property are blended together) or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court grants probate. A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. It is only after this that the Will comes into effect.

Restrictions on A Will

1. Transfer to unborn persons is invalid.
Where a bequest is made to a person by a particular description, and there is no person in existence at the testator's death who answers that description, the bequest is void. S.113 of Indian Succession Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has to be created in another person and the bequest must comprise of whole of the remaining interest of the testator. In Sopher v. Administrator-General of Bengal a grandfather made the bequest to his grandson who was yet to be born, by creating a prior interest in his son and daughter in law. The Court upheld the transfer to an unborn person and the Court held that since the vested interest was transferred when the grandsons were born and only the enjoyment of possession was postponed till they achieved the age of twenty one the transfer was held to be valid.
In Girish Dutt v. Datadin , the Will stated that the property was to be transferred to a female descendant (who was unborn) only if the person did not have any male descendant. The Court held that since the transfer of property was dependent on the condition that there has to be no male descendant, the transfer of interest was limited and not absolute and thereby the transfer was void. For a transfer to a unborn person to be held valid, absolute interest needs to be transferred and it cannot be a limited interest.

2. Transfer made to create perpetuity

S.114 of the Indian Succession Act, 1925 provides that no bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.

The rule against perpetuity provides that the property cannot be tied for an indefinite period. The property cannot be transferred in an unending way. The rule is based on the considerations of public policy since property cannot be made inalienable unless it is in the interest of the community. The rule against perpetuity invalidates any bequest which delays vesting beyond the life or lives-in-being and the minority of the donee who must be living at the close of the last life. Hence property can be transferred to a unborn person who has to be born at the expiration of the interest created and the maximum permissible remoteness is of 18 years i.e the age of minority in India.

In Stanely v. Leigh it was laid down that for the rule of perpetuity to be not applicable there has to be 1)a transfer 2)an interest in an unborn person must be created 3)takes effect after the life time of one or more persons and during his minority 4)unborn person should be in existence at the expiration of the interest.

3. Transfer to a class some of whom may come under above rules

S.115 of ISA provides that if a bequest is made to a class of persons with regard to some of whom it is inoperative by reasons of the fact that the person is not in existence at the testator's death or to create perpetuity, such bequest shall be void in regard to those persons only and not in regard to the whole class.

A number of persons are said to be a class when they can be designated by some general name as grandchildren, children and nephews. In Pearks v. Mosesley defined gift to a class as a gift to all those who shall come within a certain category or description defined by a general or collective formula and who if they take at all are to take one divisible subject in certain proportionate shares.

4 Transfer to take effect on failure of prior Transfer

S.116 of ISA provides that where by reason of any of the rules contained in sections 113 and 114 and bequest in favour of a person of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same Will and intended to take effect after or upon failure of such prior bequest is also void.
he principle of this section is based upon the presumed intention of the testator that the person entitled at the subsequent limitation is not intended to be benefited except at the exhaustion of the prior limitation. In Girish Dutt case one S gave property to B for life and after her death if there be any male descendants whether born as son or daughter to them absolutely. In the absence of any issue, whether male or female, living at the time of B’s death, the gifted property was to go to C. it was held that the gift in favour of C was dependent upon the failure of the prior interest in the favour of daughter and hence the gift in favour of C was also invalid. However alternative bequests are valid.

Invalid Wills

Wills invalid due to fraud, coercion or undue influence
S.61 of ISA provides that a Will, or any part of Will made, which has been caused by fraud or coercion, basically not by free will, will be void and the Will would be set aside.
Fraud: S.17 of the Indian Contract Act provides for fraud. Actual fraud can be committed through 

1) misrepresentation.

 2) concealment. Fraud in all cases implies a willful act on the part of anyone whereby, another is sought to be deprived by illegal or inequitable means, of which he is entitled to

Coercion: S.15 of Indian Contract Act defines coercion. Any force or fear of death, or of bodily hurt or imprisonment would invalidate a Will. In Ammi Razu v. Seshamma , a man threatening to commit suicide induced his wife and son to give him a release deed. It was held that even though suicide was not punishable by the Indian Penal Code yet it was forbidden by law and hence the release deed must be set aside as having been obtained by coercion.

Undue influence: Undue influence u/s.16 of the Indian Contract Act is said to be exercised when the relations existing between the two parties are such that one of the parties is in the position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. However, neither a fiduciary relationship nor a dominating position would raise a presumption of undue influence in the case of Wills as all influences are not unlawful. Persuasion on the basis of affection or ties is lawful. The influence of a person in a fiduciary relationship would be lawful so long as the testator understands what he is doing. Thus it can be said that a testator may be led but cannot be driven.

Wills Void Due To Uncertainty

S.89 of ISA states that if the Will were uncertain as regards either to the object or subject of the Will then it would be invalid. The Will may express some intention but if it is vague and not definite then it will be void for the reason of uncertainty. The Will may depose of the property absurdly or irrationally i.e the intention maybe irrational or unreasonable, but that does not make it uncertain. For uncertainty to be proved it has to be proved that the intention declared by the testator in the Will is not clear as to what is he giving or whom is he giving. Only if the uncertainty goes to the very root of the matter, then only the Will has to be held void on the grounds of uncertainty.

Will Void Due To Impossibility Of Condition

S. 124 of ISA provides that a contingent legacy can take effect only on happening of that contingency. A conditional Will is that Will which is dependent on the happening of a specific condition the non-happening of which would make the Will inoperative. S.126 of ISA provides that a bequest upon an impossible condition is void. The condition may be condition precedent or condition subsequent.

Will void due to illegal or immoral condition

S.127 of ISA provides that a bequest, which is based upon illegal or immoral condition, is void. The condition which is contrary, forbidden, or defeats any provision of law or is opposed to public policy, then the bequest would be invalid. A condition absolutely restraining marriage would also make the bequest void. S.138 of ISA provides that the direction provided in the Will as to the manner in which the property bequeathed is to be enjoyed then the direction would be void though the Will would be valid.

Refrences

List Of Cases Referred
1. A.E.G. Carapeit v. A.Y. Derederin AIR 1969 Cal 359
2. Ammi Razu v. Seshamma ILR 41 Mad 33
3. Bhura v Kashi Ram (1994) 2 SCC 111
4. Bodi v. Venkatasami (1915) 24 Pat 395
5. Charu Chandra v. Kitish Chandra AIR 1948 Cal 351
6. Ganpatrao v. Vasantrao AIR 1932 Bom LR 1371
7. Girish Dutt v. Datadin AIR 1934 Oudh 35
8. Gnanambal Ammal v. T. Raju Aiyar AIR 1951 SC 103
9. Gurdilal Kaur & Ors v. Katar Kaur & Ors (1998) 4 SCC 384
10. Hartley v. Tibber (1853) 16 Beav 510
11. Jotindra Nath v. Rajlakshmi AIR 1933 Cal 449
12. Kasturi v. Ponnammal AIR 1961 SC 1302
13. KV Subbaraju v. C Subaraju AIR 1968 SC 947
14. KV Subbaraju v. C Subaraju AIR 1968 SC 947
15. Lakshmi Chand v. Anandi (1926) 53 IA 123
16. Mt. Gomtibai v. Kanchhedilal (1949) 2 MLJ 469
17. Narain Singh v. Kamla Devi AIR 1954 SC 280
18. Navneet Lal v. Gokul & Ors AIR 1976 SC 794
19. Raghubar v Ram Rakha 1 CWN 428
20. Ram Nath v. Ram Nagina AIR 1962 Pat 481
21. Ramesh Chandra v. Lakahan Chandra AIR 1962 AP 178
22. Ramgopal v. Apina Kunwar AIR 1922 All 366
23. Shermail v. Ahmed Omer 33 Bom LR 1056
24. Sopher v. Administrator-General of Bengal AIR 1944 PC 67
25. Subbarami v. Ramamma (1920) 43 Mad 824
26. Swifen v. Swifen 1 F anf F 584
27. Thrnappa v. I.O. Bank AIR 1943 Mad 743
28. Veerattalingam v. Raesh AIR 1990 SC 2201
29. Virendra Singh Pal v. Kashibat 1998 (4) CCC 602 (MP)
List of Statues Referred