Wills (Part 2): Other aspects – Types, Amendment and Execution

Shashi Bekal, Advocate

Abstract

In furtherance to the first part where the basic of a Will was covered, in this article, the author aims to cover aspects such as types of Wills, Amendments to a Will and giving effect to a Will including Probate. Other pertinent issues such as Intestate succession, Will of Nonresidents, Income-tax implications, implications of the law of evidence and other aspects will be covered in the subsequent articles which will follow.

1.  Introduction

2.  Types

2.1. Conditional Will

2.2. Onerous Will

2.3. Joint Will

2.4. Mutual Will

2.5. Oral Will or Privileged Will

2.6. Sham Will

2.7. Holograph Will

2.8. Duplicate Will

2.9. Void Will

3. Amendment to a Will

3.1. Alterations in a Will

3.2. Codicil

3.3. Revocation

4. Giving Effect to a Will

4.1. Executors

4.2. Letters of Administration with and without a Will annexed

4.3. Succession Certificate

4.4. Probate

5. Dénouement

1. Introduction

Reiterating as mentioned in the abstract that this article aims to cover three aspects of a Will viz. Types of Wills, Amendments to a Will and Execution of a Will including Probate.

2. Types of Wills

2.1. Conditional Will

A Conditional Will or Contingent Will as it may be called, is a will which becomes effective only when met certain conditions. The will becomes invalid and inoperative if the condition is not met.

Although the words “conditional” and “contingent” can be used interchangeably. However, it must be noted that “conditional” infers that a person does or refrains from doing something. Whereas, “contingent” infers the happening or non-happening of an event.

For example, in the case of Rajeshwar Misser v. Sukhdeo Misser AIR 1947 Pat 449 (Pat)(HC) the operations of the Will were postponed until the death of the testator’s wife.

A conditional will can be subjected to the consent of another person. Non-fulfilment of compliance with a condition under a Will can be challenged in Court.

2.2. Onerous Will

As mentioned in the earlier article (Part 1), according to section 122 of the Indian Succession Act, 1925, an onerous bequest is when a legatee has to accept the Will in toto or not accept anything at all.

For example, when there is a liability attached to the property, the legatee or the beneficiary has to accept the liability along with the asset.

2.3. Joint Will

According to Halsbury’s Laws of India, “a joint or conjoint will is a testamentary instrument executed by two or more persons, in pursuance of a common intention, to dispose of their several interests in the property owned by them in common, or of their separate property treated as a common fund, to a third person or persons.”

The Hon’ble Supreme Court in the case of Kochu Govindan Kaimal & Others v. Thayankoot Thekkat Lakshmi Amma AIR 1959 SC 71 acknowledged the concept and held that a joint will, though unusual, is not unknown to law.

The Supreme Court in the case of Dr. K.S. Palanisami (Dead) vs. Hindu Community in General and Citizens of Gobichettipalayam and others, 2017 (13) SCC 15 defined a Joint Will as under

“A joint will is a will made by two or more testators contained in a single document, duly executed by each testator, and disposing either of their separate properties or their joint property… It is in effect two or more wills and it operates on the death of each testator as his will disposing of his own separate property; on the death of the first to die it is admitted to probate as his own will and on the death of the survivor, if no fresh will has been made, it is admitted to probate as the disposition of the property of the survivor. Joint wills are now rarely, if ever, made.”

The Hon’ble Madras High Court in the case of Meenakshi Ammal v. Viswanatha Iyer (1927) ILR 33 Mad 506, the Hon’ble Bombay High Court in the case of Jethabai v. Parshotam 45 Bom 987 and the Hon’ble Patna High Court in the case of Rajeshwar v. Sukhdeo AIR 1947 Pat 449 have acknowledged the validity of a joint Will.

A joint Will comes into existence on the death of one of the testators and the property of the said deceased testator can be probated.

Joint Wills are revocable at the time of existence of one of the survivors or both of them.

2.4. Mutual Will

A Mutual Will is different from a Joint Will. In a Mutual Will, two people agree to confer on each other reciprocal benefits by considering the other person as their legatee/beneficiary.

It is important to use the terms “mutual” or “reciprocal” to emphasise and denote that the Will is a Mutual Will.

A Mutual Will, on the other hand, is entirely different from a Joint Will (although they appear to be the same). The Supreme Court in the case of Shiv Nath Prasad vs. State of West Bengal, (2006) 2 SCC 757 has explained a Mutual Will in detail:

“…we need to understand the concept of mutual wills, mutual and reciprocal trusts and secret trusts. A will on its own terms is inherently revocable during the lifetime of the testator. However, “mutual wills” and “secret trusts” are doctrines evolved in equity to overcome the problems of revocability of wills and to prevent frauds. Mutual wills and secret trusts belong to the same category of cases. The doctrine of mutual wills is to the effect that where two individuals agree as to the disposal of their assets and execute mutual wills in pursuance of the agreement, on the death of the first testator (T1), the property of the survivor testator (T2), the subject matter of the agreement, is held on an implied trust for the beneficiary named in the wills. T2 may alter his/her will because a will is inherently revocable, but if he/she does so, his/her representative will take the assets subject to the trust. The rationale for imposing a “constructive trust” in such circumstances is that equity will not allow T2 to commit fraud by going back on her agreement with T1. Since the assets received by T2, on the death of T1, were bequeathed to T2 on the basis of the agreement not to revoke the will of T1, it would be a fraud for T2 to take the benefit, while failing to observe the agreement and equity intervenes to prevent this fraud. In such cases, the instrument itself is the evidence of the agreement and he, that dies first, does by his act carry the agreement on his part into execution. If T2 then refuses, he/she is guilty of fraud, can never unbind himself/herself and becomes a trustee, of course. For no man shall deceive another to his prejudice. Such a contract to make corresponding wills in many cases gets established by the instrument itself as the evidence of the agreement… In the case of mutual wills generally we have an agreement between the two testators concerning disposal of their respective properties. Their mutuality and reciprocity depends on several factors…”

The Supreme Court in the case of Palanisami (Supra) has also defined the term, Mutual Will, as under:

“The term “mutual wills” is used to describe joint or separate wills made as the result of an agreement between the parties to create irrevocable interests in favour of ascertainable beneficiaries. The agreement is enforced after the death of the first to die by means of a constructive trust. There are often difficulties as to proving the agreement, and as to the nature, scope, and effect of the trust imposed on the estate of the second to die.”

Thus, a Mutual Will restricts a beneficiary from availing the benefits under the Will in a manner which is inconsistent with the language and intentions of the testator any manner contrary to the provisions of the Will, i.e., such a Mutual Will cannot be revoked unilaterally.

Mutual Wills can be and usually are two separate Wills, unlike a Joint Will which is always one Will.

The Hon’ble Supreme Court in the case of Dilharshankar C. Bhachecha v. The Controller of Estate Duty, Ahmedabad, (1986) 1 SCC 701 explained the difference between a Joint and a Mutual Wil. The relevant portion of the decision is usefully extracted as under

…Persons may make joint wills which are, however, revocable at any time by either of them or by the survivor A joint will is looked upon as the will of each testator, and may be proved on the death of one. But the survivor will be treated in equity as a trustee of the joint property if there is a contract not to revoke the will; but the mere fact of the execution of a joint will is not sufficient to establish a contract not to revoke. The term mutual wills is used to describe separate documents of a testamentary character made as the result of an agreement between the parties to create irrevocable interests in favour of ascertainable beneficiaries. The revocable nature of the wills under which the interests are created is fully recognised by the Court of Probate; but in certain circumstances the Court of Equity will protect and enforce the interests created by the agreement despite the revocation of the will by one party after the death of the other without having revoked his will. There must be evidence of an agreement to create interests under the mutual wills which are intended to be irrevocable after the death of the first to die. ” 

A Mutual Will can be called a Joint and Mutual Will if it is created jointly. Mutual Wills can be made through a Joint Will or separate Wills, according to an agreement that they cannot be revoked.

The Hon’ble Supreme Court in the case of Palanisami (Supra) has discussed the difference between the two, the same is reproduced as under:

“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.”

Ex abudanti cautela, a Mutual Will should expressly mention the reciprocal benefits and the powers of revocation. However, during their life both the testators, upon mutual consent may revoke their mutual Will.

2.5 Oral Will or Privileged Will

According to section 57(c) of the Indian Succession Act. 1925, no Will can be made orally unless it is privileged.

According to Section 55 of the Indian Succession Act. 1925, a soldier, airman, or mariner on an expedition or in warfare who is competent to make a Will can make an oral Will.

An audibly and verbally impaired individual can use sign language to communicate their Will to witnesses. An Oral Will is subject to a high burden of proof.

2.6. Sham Will

The principle of animus testinde, is essential to the validity of a Will and the want of the same would render the Will a Sham Will.

In the event, a Will is a Sham Will, the same will be rendered nullity. Where it can be demonstrated that the Will is not according to the testator’s intentions the same will be a Sham Will

2.7. Holograph Will

A Holograph Will be written by the testator himself. Such a Will attracts a greater degree of genuineness. A Holograph Will must also comply with the basic requirements of a Will

2.8. Duplicate Will

Ex abundanti cautela, a testator may make one or more duplicate Wills. One for his possession, and the other to be deposited in safe custody or with the executor or trustee, as the case may be.

Where the testator destroys the Will which is in their custody; the other duplicate copies are deemed to be revoked (Boughey v. Moretor, 3 Hag 191).

2.9. Void Will

According to section 89 of the Indian Succession Act, 1925, a Will or bequest which is not expressive of any definite intention is void for uncertainty.

The Hon’ble Supreme Court in the case of E.V. Balakrusgnan v. Mahalakshmi Ammal AIR 1961 SC 1128 held that no rule of benevolent construction is to be applied where there is an uncertain Will.

The Hon’ble Bombay High Court in the case of Shobhana Sahadev Shah v. Sabgeeta Porbanderwala 2017 (2) AIR Bom 596 held a Will cannot be considered as valid in parts and hence the whole Will must be invalid.

3. Amendment to a Will

It isn’t unlikely that a testator would amend their Will or make a subsequent Will during their lifetime.

3.1. Alternations in a Will

Obliterations, interlineations and other alterations in a Will must be signed by the Testator. The plain language of Section 71 of the Indian Succession Act, 1925, makes it clear that any alteration made in an unprivileged will after its execution has no effect unless such alteration has been executed in the same manner in which the will is executed. This has been upheld by the Hon’ble Supreme Court in the case of Dayanandi v. Rukma D. Suvarna and others (2011) 9 SCC 234

3.2. Codicil

As explained in Part – 1, a Codicil is 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. A Codicil has the power to revoke and alter the Will.

The Will can be amended by executing a codicil in the same manner as execution at the Will. A codicil has to be in writing, signed by the testator in the presence of two attesting witnesses. Either the earlier Will may be revoked wholly and the new Will executed or a portion of the earlier Will can be retained and codicil can amend or add to the provisions of the earlier Will.

Therefore, for a Codicil to be valid it must be drafted and executed in the same manner as a Will. A Codicil cannot be an independent document and must be read along with the Will.

3.3. Revocation

According to section 62 of the Indian Succession Act, 1925, a Will being an ambulatory instrument can be revoked at any time by the testator, if he is competent to do so.

Even if the Will expressly mentions its irrevocable, it can still be revoked at the desire of the testator.

A Will can be revoked in the following ways:

1. By another Will or codicil;
2. By destruction;
3. By marriage (section 69 of the Indian Succession Act, 1925)

The subsequent will or codicil revoking the original Will needs to follow the same laws as applicable to an original Will i.e., it has to be signed and attested by two witnesses.

The Hon’ble Madras High Court in the case of Kuppuswami Raja v. Permula Raja AIR 1964 Mad 291 held that a joint will cannot be revoked by the surviving testator without the express consent of the deceased testator.

One of the real tests of a valid Will is whether it is revocable. If a document is such that it cannot be ‘revoked, it cannot be called a Will in the real sense of the term as held in Saradindu Gangopadheya v. Nirmal Nalini Devi and Others, AIR 1948 Patna 341 (Pat)(HC). Two characteristics of a Will are: (i) it must be intended to come into effect after the death of the testator and (ii) it must be revocable. It can be argued that the mentioning of the Will as “Irrevocable” is redundant and non-existent. All other essentials exist and should be considered as a Will.

A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator is void ab-initio. Importunity means to be set with persistent requests or demands; to ask for persistently or urgently. The word “importunity” is more or less synonymous with “undue influence”. Undue influence must be an influence exercised either by coercion or by fraud. Undue influence must be established by positive evidence.

A Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by a Will. It is clear that the testamentary capacity required to make a Will is also required for the revocation of a Will. It has to be established that a Will has been revoked by its maker validly. Mere nonproduction or disappearance of a Will after the death of the testator, no presumption can arise that the Will had been revoked by the testator as held by Calcutta High Court in the case of Bhutnath Das and Ors. vs. Satish Chandra Guin and Ors., AIR 1953 Cal. 597.

No unprivileged Will or codicil, nor any part thereof can be revoked otherwise than by another Will or codicil or by some writing, declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. The moment the testator makes another Will, it would purport to revoke the first. The revocation of an unprivileged Will is an act only a little less solemn than the making of the Will itself and has to comply with above stated statutory requirement contained in sec. 70 of the Indian Succession Act, 1925 as held by the Supreme Court in the case of Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors., AIR 1977 SC 74 (1977) 1 SCC 369. Thus where a Will is revoked in writing, it must be signed and attested by two attesting witnesses like an execution of a Will and all conditions required under sections 59, 61 and 63 of the Indian Succession Act, 1925 must be fulfilled.

The act of burning, tearing or otherwise destroying the earlier Will by the testator should be with the intention of revoking the same. There is no doubt that a very strict interpretation has been put upon these words “otherwise destroyed”. There must be an act of destruction and that mere symbolical destruction is not sufficient. Again, the words “with an intention to revoke”, emphasizes the fact that the destruction must be destruction with an intention to revoke. The object of the statute was to prevent the proof of revocation depending on parole evidence as held in the case of Kharshetji Ratanji Bomanji v. Kekobad S. Khambatta, AIR 1928 Bom. 194/(1928) 30 BLR 473.

The grant of probate or letter of administration may be revoked or annulled for just cause. If the Will of which probate was obtained was forged or revoked, it is liable to be revoked. The various clauses of section 263 of the Indian Succession Act, 1925 and the illustrations guide the Court while exercising its discretion to revoke the grant of probate. Since, the revocation sets aside an earlier valid judicial order there should be caution and strict proof of the presence of any one of the circumstances stated, in the provision should be insisted upon as held in the case of R. Sivagnanam v. P. K. Sadananda Mudaliar, AIR 1978 Mad.

The explanation of the term “just cause” in section 263 of the Indians Succession Act, 1925 itself, is exhaustive and not merely illustrative, so that the application of the plaintiff” must fall under one or more of the said ground as held in the case of George Anthony Harris v. Millicent Spencer, AIR 1933 Bom. 370/ (1933) 35 BLR 708.

4. Giving Effect to a Will

For the purpose of transferring the immovable properties in favour of the legatees/ beneficiaries/ heirs, the Executor or the Administrator, as the case may be has to sign, execute and register with the concerned Sub- Registrar of Assurances a Deed of Transfer in favour of legatees/beneficiaries /heirs.

4.1 Executors

As per section 2(c) of the Indian Succession Act, 1925, “executor” means a person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided.

Estates of persons dying intestate can also be subjected to administration, and administration is granted to the persons specified in sec. 218 or 219 of the Indian Succession Act, 1925. Letters of administration as provided in sec. 220 of that Act entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted, at the moment of his death.

The executor or administrator of a deceased person is his legal representative for all purposes. All the property of the deceased person vests in him on the death of the testator. As an executor, he will be responsible for the payment of the funeral expenses of the testator and the satisfaction of the debts etc. before the legacy could normally be distributed. An executor can insist that till the administration of the estate, is complete, the residuary legatees should not call upon him to pay the legacies. The executor holds the property in the right of the testator and not in the right of the beneficiaries. The executor shall be charged and chargeable for so much as is committed to him as the testator himself, for the cause, the executor is said to represent the person of the testator, for as to the estate committed to his trust, he may charge others and be chargeable himself, sue or be sued as the testator himself might. And the estate he hath by his executor- ship is said to be in him to the use of the testator in his right, and what he doth in the disposition of his estate is to be the right and to the use of the testator also. (Halsbury’s Laws of England, Page 400. Vol. II 8th Edition). He must take possession of the property, to collect the debts, and carry on the business of the deceased if directed to do so by the deceased in the Will. He can do and is expected to do whatever could have been done by the deceased.

4.2. Letters of Administration with and without a Will annexed

 Where there is no executor appointed under the Will or on account of the incapacity of the executor or the refusal of the executor, then the heirs or legatees of the deceases may approach the Court for granting a letter of administration.

In the absence of the deceased appointing any person as the executor under his Will or the person appointed as the executor is incapable to act as such executor or has refused to act as such, then any of the heirs of the deceased may apply for the court’s order confirming genuineness and validity of the Will and order granted by the Court in such case is known as the Letters of Administration with the Will Annexed.

As per section 211 of the Indian Succession Act, 1925, a Will operates immediately upon the death of its creator i.e. deceased testator. The deceased’s properties vest in the executor appointed under the Will forthwith upon the death of the deceased and for such vesting, it is not necessary that probate is previously obtained An executor can act under the Will even without previously having obtained probate.

However, section 213 of the Indian Succession Act, 1925, provides that no right as executor or legatee can be established in any court of justice unless a court of competent jurisdiction in India has granted probate of the In Will or letters of administration with the Will annexed under which the right is claimed.

When the deceased dies intestate i.e. without making any Will but leaving behind immovable property, any of the heirs of the deceased may apply for the Court’s order to administer the estate of such deceased by the rules of intestate succession applicable to such deceased at the time of his death. An order passed by the Court in such a case is known as a Letter of Administration.

Even in the case of intestate succession, section 212 of the Indian Succession Act, 1925, provides that no right to any part of the property of a person who has died intestate can be established in any court of justice unless letters of administration have first been granted by a court of competent jurisdiction. However, this section does not apply in the case of intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jain, Indian Christian or Parsi.

As mentioned above, in the case of testamentary succession i.e. if Will is available, the deceased’s property vests in the executor immediately upon death. However, so far as intestate succession is concerned, the deceased’s property vests in Administrator only upon the grant of letters of administration. However, all intermediary acts of the Administrator not tending to the diminution or damage of the intestate’s estate are rendered valid from the date of grant of letters of administration.

4.3. Succession Certificate

A succession certificate is a certificate granted by the High Courts or the District Courts only in respect of any debt or securities. It is a certificate when granted to the person that empowers the person (1) to receive interest or dividends (2) to negotiate the transfer or any of them (3) concerning the securities of a deceased person (Securities means any bond, stock, debenture or security).

A succession certificate in respect of debts and securities only can be obtained from the competent court viz., in Bombay, the High Court and elsewhere in the State, the District Court by following the procedure laid down in section 372 of the Indian Succession Act, 1925 and the rules framed by the High Court or the District Courts, as the case may be.

In the event the immovable properties are situated outside India then the court outside India will have jurisdiction and it would be necessary to obtain probate from the country in which the immovable property is situated. If the will regarding foreign property and a will regarding Indian properties are made separately (which is advisable), then the Courts in India will have jurisdiction over Indian properties and can issue probate or letters of administration in respect of such will, which is related to Indian property.

4.4. Probate

The term “Probate” has been defined in section 2(f) of the Indian Succession Act, 1925, which means, the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator.

A probate does not merely mean a copy of the grant of administration but also a copy of the will, of which the probate has been granted.

The grant of probate establishes conclusively the legal character of the person to whom the grant is made. It is conclusive evidence against all of the validity and the execution of the will and the testamentary capacity of the testator.

A Probate can be obtained when a person dies leaving his will and in such a case no right as an executor or as a legatee can be established in any court of justice unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed or has granted Letters of Administration with will annexed.

However, under Section 213 of the Indian Succession Act, 1925, no probate is required in the case of a will made by Mohammedan and in case of a will made by any Hindu, Buddhist, Sikh or Jain are not required to obtain Probate unless the circumstances mentioned in Section 57 of the Indian Succession Act, 1925, exist. Under Section 57 of the Act probate s required to be obtained in case of the Wills executed by Hindu, Buddhist, Sikh and Jain viz., (i) to all wills or codicils executed within the local limits of the ordinary original civil jurisdiction of the High Courts at Bombay, Madras and Calcutta; (ii) to all such wills or codicils made outside the limits prescribed above but relates to the immovable property situated within the territories or limits mentioned above; (iii) to all wills and codicils made by any Hindu, Buddhist or Jain after January 01, 1927, to which those provisions are not applied by clause (a) and (b):

Probate can be obtained by an executor by filing a Petition for probate in the High Courts of Bombay, Madras and Calcutta or in the District Courts as per the rules framed by the respective Courts.

Once the probate of a will is granted, it establishes the will from the death of the testator and renders valid all intermediate acts of the executors as such (see Section 227 of the Indian Succession Act, 1925). The executor derives his title under the will and all the properties of the testator vest in him immediately on the death of the testator. On grant of the probate, all the intermediate acts of the executor in connection with the estate are validated.

The probate is granted in the case of a will. The probate once granted, will be in respect of all the assets viz., all the movable and immovable properties and all liabilities of the deceased wherever situated. Whereas the succession certificate is granted only in respect of debt and securities. If a person has left a will which contains the administration of only debt and securities, it will be necessary to obtain the probate and not a succession certificate. The grant of a certificate does not establish the title of the ‘grantee as the heir of the deceased but only furnishes him with the authority to collect the debts and allow the debtors to make payments to him without incurring any risk. The certificate only authorizes the grantee to collect the debts but it does not even establish the right of the grantee to the debts, nor does it entitle the holder thereof to recover possession of properties either movable or immovable.

It is not possible to obtain a probate and a succession certificate in respect of part of the estate. Once the testator executes, the will even in respect of debts and securities, the executor will have to obtain the probate in respect of the entire estate of the deceased and not the succession certificate. The succession certificate can be granted only in the case of a person dying intestate (without leaving the will) leaving only debts and securities.

It is very difficult to answer the aforesaid question as to the time to be taken for obtaining probate. It will also depend upon whether the will is contested or not; if contested, the same will be converted Plato a suit and thereafter it will take a longer time. In case of non-contested, wills on completing the procedure laid down under section 276 of the Indian Succession Act, 1925 read with rules framed by the High Courts and District Courts, the probate can be granted by the competent courts.

The procedure followed in the city of Mumbai as per section 276 of the Indian Succession Act, 1025 and is read with the High Court rules. However, in other parts of the state the-District Court may lay down different or less cumbersome procedures. However, the District Courts are within the jurisdiction of the High Court and therefore normally they follow the procedure laid down by the High Court. The Indian Succession Act, 1925 being the Central Act, the High Courts and District Courts are bound to follow the provision of the said Act. However, the High Courts and the District Courts may make certain Rules for procedural purposes and the implementation of the provisions of the Act.

5. Dénouement

In this article, a few aspects such as types of Wills, Amendments to a Will and giving effect to a Will are covered. The series of articles which is proposed to be written on the law governing Wills is aimed to cover, aspects such as Intestate succession, Will of Non-residents, Income-tax implications, implications of the law of evidence and other relevant aspects.