Wills (Part 1): Basics of a Will

Abstract

In this article, an attempt has been made to discuss the basics of making a Will and the laws governing it. This article will be helpful for individuals, and advocates, chartered accountants and consultants who advise families on succession planning. The author aims to cover aspects such as Intestate succession, Will of Non-residents, amendments to a Will, execution of a Will, Income-tax implications, implications of the law of evidence and other aspects in the subsequent articles which will follow.

Abstract

An Introduction to Wills
Terminologies associated with a Will
Nature of a Will
Reasons to Make a Will
Who can make a Will
Who can be a beneficiary under a Will
What can be Willed
The ingredients of a valid Will and other safeguards.
Registration and Stamp Duty
Dénouement

An Introduction to Wills

In simple terms, a ‘will’ is the intention of a person to devolution of their properties after their death. The word ‘testament’ originates from testio menties, which means “the determination of the mind”.

Black’s Law Dictionary defines ‘will’ as, “the legal expression or declaration of a person’s mind or wishes as to the disposition of his property, to be performed or take effect after his death”. Therefore, a will is a wish or desire of a person regarding the disposition of his property after his death. The person making a will is called a testator. A will thus can also be defined as a legal declaration of the testator’s intentions as regards his property.

Part IV of the Indian Succession Act, 1925 deals with “Testamentary Succession”. The same is divided into 23 Chapters ranging from section 57 to section 191 of the Indian Succession Act, 1925. According to section 2(h) of the Indian Succession Act, 1925, “will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Therefore, it can be said that a will is an instrument of assignment.

According to section 3(64) of the General Clauses Act, 1897, a ‘will’ shall include codicil and every writing making a voluntary posthumous disposition of property.

According to section 31 of the Indian Penal Code, 1860, A ‘will’ denotes any testamentary document.

Albeit, there is a presumption that the concept of wills originated in English jurisprudence, its existence under Hindu law is not unknown. Under the Dayabhaga system of Hindu law, a father had the right to bequeath his ancestral property to the exclusion of certain children was recognized in 1800 AD.

The Hon’ble Calcutta High Court in the case of Jotendra Mohan Tagore v. Ganendra Mohan Tagore, 9 Bengal LR 377 (PC) held that a will is a disposition of property, to take effect upon the death of the donor, though revocable in his lifetime, is, until revocation, a continuous act of gift up to the moment of death, and does then operate to give the property disposed of to the persons designated as beneficiaries.
Terminologies associated with a Will
1. Attestation: As per section 63(c) of the Indian Succession Act, 1925, the act of the witness placing their signature on the will in the presence of the testator.
2. Administration: As per section 2(a) of the Indian Succession Act, 1925, ‘administration’ means a person appointed by competent authority to administer the estate of a deceased person when there is no executor.
3. Beneficiary/Legatee: The person or organization to whom you bequeath your assets in your will.
4. Bequest: It is the act of giving property under a Will after the death of the testator. There is no immediate transfer of property when any property is bequeathed; it becomes effective on the death of the testator. There are three types of bequest viz. 1. Onerous Bequest 2. Contingent Bequest 3. Conditional Bequest.
5. Codicil: As per section 2(b) of the Indian Succession Act, 1925, means 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.
6. Domicile: There are two elements that constitute a domicile viz. 1. Residence and 2. Intention to remain there forever unless circumstances alter the intentions. Sections 7 to 17 of the Indian Succession Act, 1925, deal with the aspect of ‘domicile’.
7. Executor: 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.
8. Legacy: A legacy is basically a testamentary gift of personal property from a deceased individual through a will.
9. Legal representative: As per section 2(11) of the Civil Procedure Code, 1908, “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
10. Probate: As per section 2(f) of the Indian Succession Act, 1925, “probate” means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.
11. Residual legatee: The beneficiary of the residue under the will.
12. Residue: It is the surplus or residue of the deceased’s property, after payment of debts and legacies.
13. Testator/Testatrix: The person making the will is called a ‘testator’. Testatrix is an antiquated term used for a female testator
Nature of a Will

A will is an ambulatory document which is revocable during the lifetime of the testator and takes effect only after the death of the testator. The document can be modified or revoked during the lifetime of the testator. ¹ Any clause in the will which cannot be revoked will render the Will void. ² Further, during the existence of the testator, a Will has no legal effect and cannot be ordered to be produced. A suit cannot be filed against the testator for unilaterally revoking a Will. ³

Therefore, a will comes into force only after the death of the testator. An interesting question arose before the Hon’ble Income-tax Appellate Tribunal – Mumbai Bench in the case of JCGT v. Shreyans J. Shah [2005] 95 ITD 179 (MUM.)(TM) that whether civil death i.e., adopting sanyas, can be considered for the purpose of a will. It was held that it is difficult to treat such a document as a ‘will’.
Reasons to make a Will

There are several reasons why one should make a fill. Firstly, it determines who will manage the estate of the testator. Secondly, it saves time, money and energy for the beneficiaries. It reduces the chance of long-drawn litigation and court battles. Thirdly, it decides how the estate has to be divided and distributed. Fourthly, it helps protect the interest of minors by allowing the testator to nominate guardians. Further, one could even have funeral instructions or leave a part of the estate for their favourite cause. It is therefore advisable to make a will at an early age due to the uncertainty of life.

In the event, there is no Will, the succession and devolution of properties will be intestate i.e., the properties will go to the legal heirs as per Indian Succession Act, 1925, or Hindu Succession Act, 1956 or Mohammedan Law.

When a person changes their religion, for example, converts from Hinduism to Christianity, they will be bound by the laws of the Indian Succession Act, 1925. ⁴ The law governing at the time of death will decide the intestate succession. ⁵ Section 213 of the Indian Succession Act, 1925 will apply to Wills made by Christians and Muslims. ⁶

Therefore, a Will allows a testator to peacefully transfer properties to his family and friends. It also helps the testator safeguard the special interest of certain people (faithful caretakers or friends) and also ensures that the properties do not go into the wrong hands (immoral family members). There is also an element of peaceful transfer and tax planning associated with a Will

Who can make a Will?

As per section 59 of the Indian Succession Act, 1925, every person of sound mind not being a minor may dispose of his property by will. According to the explanation provided therein, a married woman may dispose of by will any property which she could alienate by her own act during her life. Further, persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it. Further, a person who is ordinarily insane may make a will during an interval in which he is of sound mind. Also, no person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.

The Hon’ble Allahabad High Court in the case of Krishna Kumar v. Kayastha Pathshala AIR 1966 All 570 (All)(HC) held that a testamentary capacity should not be judged by any absolute standards but as relative to a particular testamentary act.

Section 11 of the Indian Contract Act, 1872, provides that a person is competent to contract on attaining the age of majority. Section 3 of the Indian Majority Act, 1875, every person domiciled in India attains the age of majority upon completing the age of eighteen. Therefore, a minor is not competent to make a Will.

The law on succession requires that the making of a will be a purely personal act and cannot be delegated to someone else.
Who can be a beneficiary under a Will?

Any person, including a deity, minor, infant (including a child env entre sa mere) or lunatic can be a beneficiary under a Will. Under Muslim law, bequeathing property to an heir without the consent of other heirs is not valid. A juridical entity is not merely an association of personas and letters of administration can be granted to it. ⁷

A will can be made in favour of would-be family members such as grandson, daughter in law et cetera. ⁸

A beneficiary or legatee has the right to renounce the property. To the extent a beneficiary or legatee renounces the property, succession will be intestate unless specified otherwise in the Will. In case the property is attached with liability, the legatee has to accept the liability along with the property. This is called onerous bequest and the legatee shall have to discharge the liability. Section 168 of the Indian Succession Act, 1925, states that if any action is necessary to confirm the testator’s title to the bequeathed property, the same has to be done at the cost of the testator’s estate.

A Witness cannot also be a beneficiary under a Will. Section 67 of the Indian Succession Act, 1925, deals with the effect of gift to attesting witness. It provides that the attestation will not fail and the Will will be valid but the bequeath fails so far as the same is to the person so attesting or the wife or husband or any person claiming under him.

However, a legatee under a Will does not lose his legacy by attesting a codicil which confirms the Will. This section is not applicable to the Wills of Hindus by virtue of section 57 read with Schedule III of the Indian Succession Act, 1925 as such legatees under the Will of such persons do not forfeit their legacy on becoming attesting witnesses. In the case of Christians, section 67 of the Indian Succession Act, 1925, would apply. Section 68 of the Indian Succession Act, 1925 reconfirms the position that a witness can always prove the execution of a Will.
What can be Willed?

Any self-acquired property can be willed subject to certain exceptions.

As discussed earlier, a liability attached to a property goes along with the property. This is known as an onerous bequest/legacy. The beneficiary/legatee can take nothing by it unless they accept it toto. To mean the legatee/beneficiary shall have to accept the bequest along with the obligation affixed therewith. Where the obligation to perform a marriage of a daughter of the testator was attached to the Will and marriage was performed but the legatee contributed nothing, it was held that he is non-suited by section 122 of the Indian Succession Act, 1925 and is not entitled to bequest as per the Will. ⁹

Where a Will contains two separate and independent bequests to the same person, the legatee is at liberty to accept one of them and refuse the other, although the former may be beneficial and the latter onerous. The legatee has a right to renounce the property. If the legatee renounces the property, the succession shall be considered as intestate succession, unless and until it is specified in the Will, as to the legatee in substitution of a legatee who renounces the property.

Where property specifically bequeathed is subject at the death of the testator to any pledge, lien or encumbrance created by the testator himself or by any person under whom he claims, then, unless a contrary intention appears by the ‘Will’, the legatee, if he accepts the bequest shall, accept subject to such pledge or encumbrance and shall be liable to make good the amount of such pledge or encumbrance in terms of section 167 of the Indian Succession Act, 1925. Thus, any liability affixed with the asset had to be discharged by the legatee. Such liability on its discharge would be considered an “improvement” and added to the cost of the asset.

The Hon’ble Supreme Court in the case of R. M. Arunachalam vs. CIT, (1997) 227 ITR 222 (SC)/ (1997) 141 CTR 348 (SC) approved of the decision of Hon’ble Gujarat High Court in the case of CIT vs. Daksha Ramanlal, (1992) 197 ITR 123 (Guj.) / (1992) 105 CTR 207 (Guj.) where it was held that the payment made by a person. For the purpose of clearing off the mortgage created by the previous owner is to be treated as a cost of acquisition of the interest of the mortgagee in the property and is deductible under section 48 of the Income-tax Act, 1961.

The Hon’ble Supreme Court in V. S. M. R. Jagdishchandran (Decd) By LRs. v. CIT. (1997) 227 ITR 240 (SC) / (1997) 141 CTR 361 (SC) distinguished between the liability created by the self and the liability created by the previous owner. It has been held that where a mortgage was created by the previous owner during his lifetime and the same was subsisting on the date of his death, the successor obtains only the mortgagor’s interest in the property and by discharging the mortgage debt he acquires the mortgagee’s interest in the property and, therefore, the amount paid to clear off the mortgage is the cost of acquisition of the mortgagee’s interest in the property which is deductible as cost of acquisition under section 48 of the Income-tax Act, 1961.

Ancestral property cannot be Willed: Ancestral properties cannot be Willed or gifted away, subject to certain conditions as other family members also have a share in the ancestral property.

Tenancy rights cannot be Willed: The Hon’ble Supreme Court in the case of Bhavarlal Labhchand Shah v. Kanaiyalal Nathalal Intawala AIR 1986 SC 600 and Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis (1994) 3 SCC 481 while dealing with the erstwhile law i.e., Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 (succeeded by Maharashtra Rent Control Act, 1999) has held that the Legislature could not have intended to confer such a right on the testamentary heir. Otherwise, the right of the Landlord to recover possession will stand excluded even though the original tenant with whom the Landlord contracted is dead.

Therefore, unless the contract specified otherwise, tenancy rights cannot be bequeathed.

Share in a Hindu Undivided Family as a Coparcener: On a joint reading of sections 6 and 30 of the Hindu Succession Act, 1956, it can be understood that a Hindu Coparcener is empowered to will his share in the Family property.

This view was upheld by the Hon’ble Himachal Pradesh High Court in the case of Kartari Devi and Others v. Total Ram 1992(1) Shim LC 402, which was later affirmed by the Hon’ble Supreme Court in the case of Tek Chand and another v. Mool Raj and Others 1997 (2) HLR 306.

Share in a private trust: Only a beneficiary of a determinate private trust (being an irrevocable trust) can transfer their interest by way of Will. This view is supported by the decision of the Hon’ble Supreme Court in the case of Canbank Financial Services Ltd. v. Custodian and Others AIR 2004 SC 5123. The transfer should be in accordance with section 58 of the Indian Trust Act, 1882. The Hon’ble Karnataka High Court in the case of CWT v. Indumati R. Kirloskar 1988 (3) KarLJ 377 has held ‘transfer under section 58 of the Indian Trust Act, 1882 and Transfer of Property Act, 1882 should be understood in the same sense.

Share in a revocable or indeterminate trust cannot be transferred or Willed.

Life interest in property: A life interest is an interest in the property during their lifetime and after their death passes on to the legatee. Such an interest is prescribed under section 119 of the Indian Succession Act, 1925.

The Hon’ble Supreme Court in the case of Lakshmana Nadar and Others v. R. Ramier AIR 1953 SC 304, held that a widow who only possessed life interest in the property could not dispose of the same.

Agricultural land: On the issue of whether agricultural land can be gifted/ Willed or not, reference is drawn to the decision of the Hon’ble Supreme Court in the case of Vindo Sakarlal Kapadia v. State of Gujarat CA. No. 2573 of 2000 dated June 15, 2020, where it was held that agricultural land cannot be willed to a non-agriculturist as transfer and alienation of agricultural land stemmed from Entry 18 List II of the Constitution of India, and the primary concern was to grant protection persons from disadvantaged categories. Applying the same principles, it should be kept in mind that the donee must also be an agriculturalist and due permission of the Collector has been obtained.
The ingredients of a valid Will and other safeguards

The ingredients of a valid Will and other safeguards for a robust Will are as under:
1. Before drafting a Will, it is important to determine the domicile of the testator and the various movable and immovable properties owned by the testator and the geographical locations of the immovable properties.
2. In the event, there are properties in foreign countries. It is advisable to separate Wills for properties situated in each country.
3. A Will should be drafted in simple and clear language. It is advisable to avoid legal or technical terms.
4. A Will has to be in writing. An oral/verbal Will can only be made by soldiers, airmen and mariners in warfare. This is also known as a privileged Will. However, sections 65 and 66 of the Indian Succession Act, 1925 dealing with privileged Will do not apply to Hindus.
5. It should bear the signature or thumb impression of the testator and it should appear to give effect to the Will. It is advisable to sign each sheet/page of the Will.
6. It is advisable that the testator signs the Will in the same language in which the Will is written. This helps to demonstrate that the testator is aware of the contents of the Will.
7. Shaky or unclear signatures do not render the Will invalid. The genuineness can be established by the attesting Witnesses.
8. If the testator is old or ill, it is advisable to obtain a medical certificate stating that he is in the state of bequeathing property and the testator is aware of his actions.
9. It is not necessary that a Will has to be written in own hand. The Hon’ble Supreme Court in the case of Mathew Oommen v. Sseela Mather AIR 2006 SC 786 approved a Will drafted by a Senior Advocated and his junior was also one of the attesting witnesses.
10. Although it is not necessary to state the reasons for bequeathing property to a specific person or excluding a specific person/heir, it is advisable to do so to avoid any challenge to the Will or other unintended consequences.
11. A Will should be attested/witnessed by two persons. It is not necessary that both the witnesses be present at the same time. It is advisable to have the full name and address of the witnesses. This is necessary for omnia praesumuntur rite esse acta i.e., all acts are presumed to be rightly done.
12. As per section 67 of the Indian Succession Act, 1925, A witness cannot be a legatee.
13. It is not necessary that a Will has to be executed on stamp paper or registered. However, it is advisable to register a Will and to execute it on a non-judicial stamp paper to exuberate confidence.
14. A Will may be executed before a Notary i.e., an officer duly authorized to authenticate documents. Getting a Will registered by a Notary Public serves the same purpose as that of depositing a Will with the Registrar of Documents
15. It is advisable to specifically name all the legatees and the properties bequeathed to them. Gifts given to any legatee in the past can be mentioned.
16. Life interest in a property to any beneficiary is to be specifically specified.
17. It is advisable that a residuary legatee should also be named in case there is any residuary legacy.
18. Directions to donate organs can also be part of the Will.
19. As per sections 112 and 113 of the Indian Succession Act, 1925, there cannot be a direct bequest to a person who is not in existence at the time of the death of the testator. In such an event the testator should assign the possession of such properties to an existing person until the existence of the legatee.
20. Any inconsistency with the provisions of the Indian Succession Act, 1925, should be avoided. For example. The Will should not conflict with the Rule against Perpetuity.
21. It is advisable to have two or more executors, jointly or in an alternate. The executor’s name, address, powers et cetera to be specified.
22. The Will should specify that it is the last will and all earlier Wills are revoked.
23. The date and manner of discharge of liabilities and distribution of properties are to be specified.
24. The date of the Will and the place of its execution should be mentioned.
Registration and Stamp Duty

As per section 18(e) of the Registration Act, 1908, registration of a Will is optional, albeit, it is advisable to register it to avoid any doubts on the genuineness.

Under section 18 of the Registration Act, 1908, the registration of a Will is not compulsory. The Hon’ble Supreme Court in the case of Ishwardeo Narain Singh v. Kamla Devi and others AIR 1954 SC 280 held that by mere non-registration of the Will, an inference cannot be drawn against the genuineness 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

It is advisable to execute a Will on a non-judicial stamp paper. As per Section 3, Schedule 1 of the Indian Stamp Act, 1899, no stamp duty is chargeable on a Will.

It is also advisable to deposit a Will in accordance with sections 42 and 43 of the Registration Act, 1908.
Dénouement

Adolf Hitler’s famous quote, “The amount of money that is in your bank at the time of your death is the extra work you did which wasn’t necessary”. However, the least one could do is ensure that their ‘extra work’ is utilized in the manner in which they intended. A Will is a measure that ensures this intention.

Hence a Will is a crucial document and utmost care must be taken while executing the same to avoid any unintended consequences. It is also essential and advisable for everyone to execute a Will to avoid intestate succession.

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, amendments to a Will, execution of a Will, Income-tax implications, implications of the law of evidence and other relevant aspects.

Thakur Umrao Singh and another v. Thakur Lachman Singh & Another 33 All 344(PC)
Sagar Chan Mandal v. Digambar Mandal 14 CWN 174
Rambhajan v. Gucharan ILR 27 All 14
Kamawati v. Digbijai Singh AIR 1922 Privy Council 12 AIR 1932 Oudh 85
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Manmohan Singh v. Jogender Kaur 2003 (1) Civil Law J 880