Article – Significance of Wills – An Indian Perspective

INTRODUCTION

It has been said almost too frequently to require repetition that a Will is one of the most solemn documents known to law^[1]. By making a Will, one is free to lay down his own scheme of distribution of his property after his death.^[2]  It is pertinent to mention that a Will can also reduce conflict between the legal heirs of the deceased with respect to his/ her Estate. Whereas, a Will may or may not necessarily appoint an Executor.

Will is a translation of the Latin word ‘Voluntas’, which was a term used in the text of Roman Law to express the intention of a Testator. It is of significance that the term has come to mean that document in which the intention is contained.^[3] The intention means one which the Will itself by express words or by implication declares and the duty of the Court becomes to ascertain from the language of the entire document, the intention of the Testator.^[4]

The Indian Succession Act, 1925 is the principal legislation in India for the law of testamentary succession. Section 2(h) of the Indian Succession Act, 1925 defines a Will 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.’ Further, the General Clauses Act, 1897 is the only other piece of legislation which throws light on the definition of a Will, where Section 3(64) states that ‘will shall include a codicil and every writing making a posthumous disposition of property.’  

TYPES OF WILLS

The Indian Succession Act, 1925 lays down the modalities for execution of a Will, and for the same purpose, classifies them into two categories – (i) Privileged Wills (governed by Section 65 of the Act); and (ii) Unprivileged Wills (governed by Section 63 of the Act).

As per Section 65 of the Act, any Soldier being employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or any mariner being at sea, if he has completed the age of eighteen years, may dispose of his property by a Will as per procedure laid down in Section 66 of the Act. Such Wills are called Privileged Wills and are appropriately so called, for such Wills may be in writing or may be made by word of mouth (oral).

The procedure laid down for the execution of ‘Privileged Wills’ is far more relaxed than that prescribed for ‘Unprivileged Wills’. Section 66 (2) (g) states that a Will may be made by the testator by word of mouth by declaring his intentions before two witnesses present at the same time, however, Section 66 2(h) states that such an Oral Will shall be void at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a ‘Privileged Will’.

Whereas, as per Section 63 of the Act, every testator, NOT being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, is bound to execute his Will as per procedure laid down therein. It requires the testator to execute a Will in writing and to sign or affix his mark to the Will however, it may be signed by some other person in the presence of the testator and upon his direction. It also requires the Will to be attested by two or more witnesses, as per the procedure laid down therein. Such a document, so executed is an‘Unprivileged Will’.

There is yet another category of ‘Wills’, which may encompass the testamentary dispositions of more than a Sole Testator. Such ‘Wills’ are in the nature of either ‘Joint Wills’ or ‘Mutual/Reciprocal Wills’.

As held by Madras High Court in the case of Kuppuswami Raja & Another V/s. Perumal Raja and Others^[5]:

“A Joint-Will is a single testamentary instrument constituting or containing the Wills of two or more persons and jointly executed by them; while mutual Wills are the separate Wills of two or more persons which are reciprocal in their provisions and executed in pursuance of compact or agreement between two or more persons to dispose of their property to each other or to third persons in a particular mode or manner. Mutual Wills as distinct from joint Wills are sometimes described as reciprocal Wills. In describing a Will the adjective “Mutual” or “reciprocal” is used to emphasise and denote the contractual element which distinguishes it from a joint will.”

In the case of Kochu Govindan Kaimal & Others v. Thayankoot Thekkot Lakshmi Amma & Ors.^[6] , the Supreme Court observed – “A Will is mutual when two testators confer upon each other reciprocal benefits, as by either of them constituting the other his legatee; that is to say, when the executants fill the roles of both testator and legatee towards each other. But where the legatees are distinct from the testators, there can be no question of a mutual will.”

More recently, in the case of Krishna Kumar Birla v. Rajendra Singh Lodha & Ors.^[7] the Supreme Court was called upon to decide an issue with regard to execution of a mutual Will by a husband and wife, wherein later, the survivor wife executed a fresh Will bequeathing her entire estate to the first Respondent. The Court held – “…. Despite the existence of a mutual Will, the representative under the latter Will shall take the property. He, however, takes the property subject to the terms of the Mutual Will.” Meaning thereby, a subsequent bequeath by the Wife (spouse) is permissible, if it does not run contrary to the terms expressed in the Mutual Will, by the testators.

The Supreme Court further held as under:

“(i) A Will made in prejudice of an agreement will nevertheless be effective as a Will as it is by its very nature and by its very essence a revocable instrument.

(ii) A subsequent infringing Will would be valid even if it revokes an earlier Mutual Will.

(iii) Similarity of the terms would not be enough to establish the necessary agreement.

(iv) Whether a legatee has taken any benefit under the alleged Wills of 1982 would, however, be relevant.”

Therefore, it is clear from the above that the test for determination whether a Joint Will or a Mutual Will remains irrevocable after the death of one of the testator, depends on the facts of each case and is, therefore, purely objective.

MODE OF EXECUTION

On a conjoint reading of Section 57 and Schedule III of the Act, it is abundantly clear that Section 65 and Section 66 do not apply to any Hindu, Buddhist, Sikh or Jain, therefore, an oral Will executed by any Hindu, Buddhist, Sikh or Jain after the first day of September, 1870, as per Section 57 (a) and (b), and after the first day of January, 1927, as per Section 57 (c), is not valid. The Delhi High Court, in Sunita Shivdasani v. Geeta Gidwani & Anr.^[8], has held that a Will of a Hindu is required to be in writing and an oral Will executed by a Hindu, is impermissible in law.

REGISTRATION OF WILLS

Section 18 of The Registration act, 1908 clearly makes it optional for the testator of a Will to get it registered, but registration of a Will raises a strong presumption of its genuineness, and therefore, advantageous. Furthermore, a registered Will remains in the safe custody of a Government Official, hence cannot be tampered with.

In Arjan Dev Mittra v.Sada Nand & Ors.^[9], the Delhi High Court observed as follows: “The law is well settled. Once a Will is registered, there is a presumption of its genuineness until and unless there are very strong reasons which create doubts about its execution or it suffers from some lacuna which is provided by law for execution of a valid Will.”

Whereas, the Madras High Court in T. Kanniah Rao v. Inder Rao^[10] held that registration of a Will is not a proof of testamentary capacity. Therefore, the mere fact of registration of a Will does not in any way belittle or reduce the rigour of proof.

WHETHER PROBATE OF A WILL IS MANDATORY?

Section 57 read with Section 213 reveals that only those Wills are required to be Probated which were executed after the first day of September, 1870 within the territories which were within the local limits of ordinary original civil jurisdiction of the High Court of Judicature at Calcutta, Madras and Bombay. As per Section 213 (2) (ii) of the Act, Probate is also required in respect of a Will made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962).

But, question arises whether a probate is required if the Will is executed in areas specified in Section 57 (a) dealing with a bequeath of immovable property not situated in the above mentioned areas? Let’s say, X, a resident of Mumbai, executes a Will in Mumbai bequeathing his immovable property situated in Delhi to his sister Y. According to the law as discussed above, the Will would require to be probated, as the Will has been executed in Mumbai, which falls in the areas specified in Section 57 of the Act, although if executed in Delhi, Y would not have to seek a Probate, as no seeking of Probate is not mandatory in Delhi. This view was taken by the High Court of Punjab in the case of Ram Chand V/s Sardara Singh & Another^[11]. Subsequently, the decision of the Single Judge in Ram Chand (supra) case was upheld by the Division Bench in the case of Behari Lal Ram Charan V/s Karam Chand Sahni & Others^[12].

CONCLUSION

In view of the above, it is clear that a Will may take any form or construction and the same depends only upon the desire of the testator or testators, as the case may be. It is also lucid that while registration of a Will is not the mandate of law, yet registration ascribes a presumption of genuineness to the Will.