Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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Vivekananda Institute of Professional Studies
Will is a legal document through which a person decides how his/her property would be distributed, allocated and spent after his death. A person who dies without creating a will is called dying intestate. Dying intestate forces the relatives of the deceased to spend additional time and money for acquiring the estate of the deceased, which could have been easily done by creating a will. Dying intestate does not distribute the assets of the deceased according to his wish and will rather its done according to the law. As it is only logical to distribute your hard earned money according to your wish and the way you want it and this can be easily done by creating a will.
Conditions for a Valid Will1 (Section 63 of the Indian Succession Act, 1925)
- The testator should sign or affix his mark (e.g., thumb mark)
- The Will must be attested by 2 or more witnesses
- The witnesses must have seen the testator sign or affix his mark to the Will
- Each witness shall sign the Will in the presence of the testator.
- The witness should not be a beneficiary under the Will.
Types of Will
a) Privileged and Unprivileged Wills:
Indian Succession Act, 1925 provides certain privileges to a soldier, an airman and a mariner at sea employed in an expedition or engaged in actual warfare. These privileges are enacted keeping in mind the complicated predicament a soldier is in during the tenure of his service. Provisions pertaining to such privileges are mentioned under section 662 of the Act and such wills are called Privileged Wills3 (Section 65 of the Indian Succession Act, 19254). Provisions allowing word of mouth in presence of witnesses to be considered as valid will and written instructions to be considered as a valid will after the death of a soldier are some of the prime examples of such privileges.
Wills created by a testator not being a soldier, an airman and a mariner at sea employed in an expedition or engaged in actual warfare are known as Unprivileged Wills. Unprivileged Wills are governed under section 635 of the Act.
b) Contingent/Conditional Wills:
Execution of these wills are dependent on happening of an event and if that event occurs in the future only then the will is to become effective. These wills are created for multiple purposes. If the testator wants to motivate a loved one for doing something good, like 'my son will get my property only if he graduates from his law school with a 70% score' or want to make safe appropriations of his property in case of his death while touring abroad6, he can make a contingency regarding the same in his will. Any condition which is contrary to the law or is invalid in nature cannot be incorporated in a will.
c) Joint Wills
When two or more people agree to make a conjoint will, such testamentary documents are known as Joint Wills. These are generally created between married couples, with an intention to leave the property to their spouse after one of them dies. A joint will can also be created with an intention to take effect after the death of all the testators. In such Joint Wills till all the testators are alive, a single testator cannot revoke the will alone. He/ She would require the consent of other testators to revoke their joint will. Only when all other testators have died, the sole surviving testator can revoke the will alone.
d) Mutual Wills
Mutual wills are the kind of wills in which two people agree to formulate a will on the mutually agreed terms and conditions. The testator creates the other person as his/her legatee in these wills. Generally, married couples who have children from their first marriage create such wills to esnsure the interest of those children. The terms and conditions of the will remain binding on the surviving partner after the death of first partner. Mutual Will helps to ensure that the property passes on to the children of the deceased and not a new spouse of the surviving partner in case they remarry.
e) Duplicate Wills
As the name suggests, when there are two copies of a will, then those wills are called Duplicate Wills. There are two copies of the will although it is considered as a single will. It is very simple to create a duplicate of the will. The testator has to make a second copy of the will and shall sign it and get it attested in the way that he did for the original will as per Section 63 of the Indian Succession Act, 1925. One copy can be kept with the testator and the other might be kept in safe custody somewhere like in a bank locker, with a trustee, the drafting attorney or with the executor. The testator with an intention to protect the execution of the will after his death makes a copy of the will. If the testator destroys the copy of the will that he has in his custody then, that would automatically revoke the other will.
Duplicate wills are strong and valid proof of the testamentary objectives until the original will is not on record. Otherwise, the authenticity of the duplicate will remains questionable7. Presumption that the original will stands revoked will prevail in case original will is not filed with the duplicate copy in petition for probate8.
f) Holograph Wills
Wills which are handwritten by the testator himself are known as Holographic Wills. These kinds of will have their own merit. Due to the fact that they are completely handwritten by the testator himself, raises a strong presumption9 pertaining to their regularity and execution. It is held in various judicial pronouncements that "If there is hardly any suspicious circumstances attached to the will, it will require "very little" evidence to prove due execution and attestation of such a will"10.
g) Concurrent Wills
Normally a testator prepares a single will for his/her testamentary declarations. The testator according to his wish or for the sake of convenience can make different wills for the property located in different geographical locations. Hence, co-existing wills, dealing with testamentary declarations of a single testator are known as Concurrent Wills.
h) Sham Wills11
These wills are created for an ulterior motive which is not the testamentary operation and execution of the will. Rather in most cases, these wills are created for an immoral purpose like acquiring a property that does not belong to the claimant, deceiving someone etc. One of the essential features of a valid will is the intention of the testator. These wills are supplemented with all the necessary documents to duly execute the collateral purpose and not to execute the will according to the testamentary operations.
1. https://main.sci.gov.in/jonew/judis/37170.pdf: SUPREME COURT OF INDIA
3. 2014 SCC OnLine Del 1272:Goutam Bhadra and Ors. vs. Gouri Bhadra and Ors. (26.03.2014 - DELHC) : MANU/DE/0801/2014: DELHI HIGH COURT
6. 1959 SCC OnLine Ker 63 : AIR 1960 Ker 1: A.S. Nos. 118 and 119 of 1953: MANU/KE/0001/1960 KERELA HIGH COURT
7. MANU/KE/0309/1995: A.S. No. 203 of 1988 Decided On: 27.10.1995: 1995 (2) KLT 862 HIGH COURT OF KERALA
8. 2017 SCC OnLine Bom 447 : (2017) 4 Bom CR 755:T.S. No.70/2012: T.P.No. 737/2012:HIGH COURT OF BOMBAY
9.https://main.sci.gov.in/jonew/judis/21286.pdf: CIVILI APPEAL 295/1960: AIR 1964 SC 529:MANU/SC/0278/1963:SUPREME COURT OF INDIA
10. 2018 SCC OnLine Raj 2330: HIGH COURT OF RAJASTHAN (JAIPUR BENCH) https://services.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=%2FbY2dBB1fxliePvWrCseoyIg2yg4TuBuckfEe6Z2%2Bm4QHR7EWd2a10116x0bt%2BIC&caseno=CFA/15/2009&cCode=1&appFlag=
11. http://220.127.116.11/judis/chennai/index.php/casestatus/viewpdf/9691: 2007 SCC OnLine Mad 4 : (2007) 2 CTC 152 : (2007) 2 Mad LJ 466 : (2007) 55 AIC 376 (Mad): HIGH COURT OF MADRAS
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