Law of Wills in India

What is a Will and Why is it Important to Have One?

‍A will is a legal document that expresses an individual’s clear and intentional wishes regarding the distribution of their property after their death. It holds significant weight in a court of law and allows the testator (the person making the will) to determine how their assets will be divided among their legal heirs, spouse, parents, extended family, or other beneficiaries. A will is a written document that can be amended or revoked by the testator during their lifetime.

Having a will is highly advisable for several reasons. Firstly, it allows the testator to avoid potential legal disputes and ensures the organized and planned execution of their property distribution. By clearly stating their intentions in a will, the testator can minimize the chances of disagreements among family members and prevent any confusion or uncertainty regarding their wishes.

Moreover, a will provides peace of mind to the testator, knowing that their assets will be distributed according to their specific instructions. It allows them to have control over their estate and make sure that their loved ones are taken care of after their passing.

Wills in India

In India, the law governing testamentary succession is the Indian Succession Act, 1925 [“the Act”]. According to Section 2(h) of the Act, a will is a legal declaration of a testator’s intention regarding their property, which they desire to be carried into effect after their death. The property can be both movable and immovable. Sections 57 and 58 of the Act make it amply clear the applicability of provisions only to Hindus, Buddhists, Sikhs, and Jains, and not to Muslims. Although, the Act does not apply to Muslims, they too can draft and execute a Will on which the rules of Muslim law apply.

Eligibility to Draft a Will

Section 59 of the Act provides that any person who is of legal age and of sound mind can draft a will. However, there is an exception for individuals with disabilities such as deafness, muteness, blindness, or insanity. Even if a person with a disability drafts a document, it will not be considered a valid will unless they were consciously aware of their actions at the time of drafting.

Legal Requirements for Making a Valid Will

To make a valid will, certain essential requisites must be met:

Intention of the testator: The testator must clearly express their intention regarding the disposition of their property after their death.

Legal declaration: The will must be a legal declaration, specifically addressing the testator’s property and its disposal.

Subject to amendment or revocation: The testator should have the freedom to amend or revoke the will during their lifetime.

Not obtained by coercion, fraud, or importunity: The will must be made voluntarily and should not be a result of any external pressure or manipulation.

Duly executed: The will must be properly executed according to the legal requirements.

It is important to note that a will does not need any technical or legal jargon to be valid. The words used must clearly and unequivocally state the testator’s intent regarding the distribution of their property. Minor discrepancies or omissions may not invalidate the will as long as the testator’s intentions can be deduced easily.

While drafting a will, the testator should ensure that all details regarding the properties, beneficiaries, and their respective shares are described clearly and unambiguously. This will prevent any confusion or misinterpretation of the testator’s intent.

In fact, A will can be altered or amended at any time using a codicil, which is a document that explains, alters, or amends the will. According to Section 62 of the Indian Succession Act, 1925, a testator can revoke or alter a will at any time as long as they are competent to dispose of their property at the time of revocation.

Execution of a Will

To ensure the proper execution of a will, the testator must appoint an executor who will be responsible for carrying out the instructions in the will. Section 63 of the Act mandates that the will must be written and signed by the testator themselves or by another person upon the testator’s instructions and in their presence, at least two witnesses must also sign the will.

Registration of a Will

While under Section 18 of the Registration Act, 1908, registration of a will is not compulsory, it is highly recommended to ensure its safety from tampering or destruction. Registering a will provides proof and confirmation that it is the last will of the deceased. Registration also helps in safeguarding the will from tampering with or theft, as it is kept in the custody of the Sub-Registrar. Section 40 of the Registration Act allows the testator to register the will themselves or, after their death, the executor can register it before the Registrar or Sub-Registrar.

A registered will eliminates the burden of proof regarding the validity of its contents. However, Section 63 of the Act clarifies that even an Unregistered will can be considered valid if it has two independent witnesses who can attest to its execution.

In some States across India, execution of a will requires Probate, which is a certified copy of the will obtained from a court’s order. It is imperative to understand that Probate is a mandatory requirement for wills registered or where the property is situated only in certain States. However, the unregistered will must be probated before the Court for the legal heir to exercise their rights under it. For example, the Government of Delhi recently issued a circular making probate mandatory for unregistered wills.

Challenging a Will in Court

Despite meeting all the criteria, the validity of a will can still be challenged if it was obtained through coercion, fraud, or importunity. If the testator was not able to exercise free will while making the will, it may be considered invalid. Registered wills are generally more readily accepted by courts due to the lack of doubts regarding their authenticity. However, unregistered wills may raise concerns about the genuineness of their contents. A grant of probate can also be canceled under certain circumstances, such as defective proceedings or fraudulent obtaining of the grant. Moreover, the limitation to challenge the validity of a will has been set to twelve years.

Recently, the Supreme Court in Ghanshyam V. Yogendra Rathi [Civil Appeal Nos.7527-7528 of 2012 dated 02.06.2023] held that Will before the death of the Testator cannot confer title in immovable property by stating that “the will, if any, comes into effect only after the death of the executant and not before it. It has no force till the testator or the person making it dies. The said stage has not arrived in the present case and, therefore, even the aforesaid will in no way confers any right upon the plaintiff respondent.”

In the case of Swarnlatha v. Kalavathy [Civil Appeal No.1565 of 2022 dated 30.03.2022], the Supreme Court observed that in the matter of appreciating the genuineness of execution of a will, it was not for the court to see whether the distribution made by the testator was fair and equitable to all of his children, “the exclusion of one of the natural heirs from the bequest, cannot by itself be a ground to hold that there are suspicious circumstances.”

The Tripura High Court in Smt. Niyati Das v. Smti. Milan Debnath [MFA No. 04 of 2022 dated 03.06.2023] has recently ruled that the responsibility of proving the execution of a Will, as well as addressing any doubts surrounding its validity, rests entirely on the person presenting the Will. The propounder must demonstrate the proper execution of the Will and convincingly dispel any doubts or suspicions surrounding its creation. “The burden of proof of execution of a Will as also the suspicious circumstances attached to execution of such Will always lies on the propounder of the Will who has to prove the due execution of Will and remove the suspicious circumstances from the mind of the court by cogent and satisfactory evidence”.

The high court of Delhi, in the case of Vikrant Kapila. v. Pankaja Panda [RFA(OS) 15/2022 dated 11.10.2022] while dealing with a dispute regarding the interpretation of clauses in the will of the deceased testator, stated that it is the duty of the court to give purposeful meaning to the words, and logical interpretation to the language of a will to draw out the real intention of the testator and recognise the dispositive rights of the beneficiaries. The court observed the principles of interpretation of conflicting clauses in the will to be as (i) a will has to be read as a whole and in case of contradictions, inconsistencies, variations, or the like, they “must be brought to variance with each other” on a level playing field; (ii) all clauses in a will are to be given equal importance and uniformity in conjunction with each other and not interpreted disjointly; (iii) in case certain clauses are inconsistent and a divergent meaning is possible, the order of precedence should be followed, that is, the more powerful or meaningful clause is to take precedence over the less meaningful clauses; (iv) where words in a clause can be interpreted in more than one way, the best possible and constructive meaning should be given with the overall spirit of the will in mind.

Conclusion

Understanding the law of wills in India is essential for individuals who wish to ensure the proper management and distribution of their assets after their demise. While there is no prescribed form for creating a will, it is crucial to meet certain requirements to ensure its validity. Registering a will provides added assurance and avoids challenges to its contents. Executors of unregistered wills may be required to obtain probate for property transfers, and the role of the executor is vital in carrying out the testator’s wishes. It is essential to have a basic understanding of the law of testamentary succession and the mandatory requirements for drafting a valid will. However, the process of creating a will can be challenging, and it is advisable to seek legal expertise and guidance to ensure its proper execution according to the law.