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Testamentary Succession[1]

Table of Contents

QUESTION BANK

Q.1 Explain the power of testamentary succession under various religious and statutory laws.

Q.2 Who acts as Testator and explains his competence and limitation of testamentation?

Q.3 What is will? Explain different types of wills.

Q.4 What are the rules of attestation of Will and alteration and revival of Will?

5 What are the rules of attestation, alteration and revival of Will?

Q.6 What is lapsing of legacy? What are the cases in which legacy will not lapse?

Q.7 Persons who are capable of making will under the Indian Succession Act. 1925.

Q.8 What are the essential characteristics of Will? How can the unprivileged will be made?

Q.9 What is void Will and void bequest? Discuss the circumstances in which Will becomes void.

SHORT NOTES

1 Probate

2 Codicil

SYNOPSIS

Introduction-
‘Will’ meaning and definition-

III. Essentials of Will-

(1) Testator must be competent to make Will-

(2) Legatee must be competent-

(3) Testator must have his own property capable of being transferred by Will-

(4) He must have an intention to give his property through Will.

(5) Formalities for Will-

Kinds of Will-

(1) Privileged will-

Conditions of making privileged Will-

(2) Unprivileged Will-

Revocation, alteration or revival of Will (S. 70 and 71)-

Revival of Privileged Will (S. 73)-

Muslim Will (Wasiyat)-
Capacity to make Will-
Form of making Will-
As to the bequest-
Revocation of Will-

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Short Notes

Probate-
Definition of Probate-
Effects of Probate-

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Codicil-

Definition of ‘Codicil’ (S. 2 (b)) –

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Lapsing of legacy-

I. Introduction:-

On the death of a person, his property devolves upon his heirs as per the rules of succession if the person dies intestate.[2], i.e. without making a will. When the person dies by making a will, he is said to have died as a ‘testator’, and property is disposed of as per his wish in the will/testament. Muslim law has the provision of making a will since the beginning; however, Chapter IV to XIV of the Indian Succession Act, 1925 applies to wills of non-Muslims. This means that these provisions of the Act apply to the will made by Hindus, Christians, Jews, etc. Therefore, the provisions of Muslim law apply to the will of a Muslim. Moreover, S. 30 of the Hindu Succession Act also provides for testamentary succession.

II. ‘Will’ meaning and definition:-

As per S. 3 of the Indian Succession Act 1925-

(1) will is the legal declaration

(2) of the intention of a testator

(3) with respect to his property,

(4) which he desires to be carried into effect after his death.

In Jagannath v. Kunja[3] Privy Council observed that a document by which no property is disposed of, even though described as a will by the Testator, is no will”.

The person who makes a will is called a ‘Testator’. The person in whose favour the will is made is called ‘Legatee”. The property transferred by Will is called a ‘legacy’. The person the Testator (in Will) appointed to execute Will is called the ‘Executor’.

III. Essentials of Will:-

The following are the essentials of the Will-

(1) The Testator must be competent to make Will:-

Every person with a sound mind and not a minor can dispose of his property by will.

(2) The legatee must be competent:-

Any person having the capacity to hold property can be a Legatee. Therefore, a man of any religion or sex can be a legatee. Since the same law applies to the gift and bequest, the Legatee must be in existence at the time of the death of the Testator. Therefore, a gift to an unborn person is invalid unless he takes birth at the time of the Testator. Moreover, the bequest-like gift must not affect the rule against perpetuity. The same limitation applies to gifts and legacy to the class of persons. When a legacy is made to a class or persons jointly, to some of whom it is void, the bequest will fail regarding those persons only and not regarding the whole class.

(3) Testator must have his own property capable of being transferred by Will:-

One cannot alienate the property of another. The property to be alienated must be of Testators. Moreover, the property which a Hindu, Christian, etc., cannot give by way of gift inter vivos cannot be given by will either. A Hindu cannot, by disposing of his property, defeat the legal right of his wife or any other person to maintain. A bequest stands on the same footing as a gift. Therefore, all requirements of the property to be gifted have to be in bequest (Held in Tagore v. Tagore[4]).

(4) He must have an intention to give his property through Will.

(5) Formalities for Will:-

To be a valid will, it must be in writing, signed by the testator, and attested by at least two witnesses (Except Privileged Will) (S. 63 of the Indian Succession Act, 1925).

IV. Kinds of Will:-

The wills are of the following kinds-

(1) Privileged will[5]:-

A ‘Privileged will’ is a will made by

(a) a soldier engaged in war or

(b) a marine (Navy) or

Thus, a person employed in the Army, Navy, or Air Force while at war can make such a Will. Ss. 65 and 66 of the Indian Succession Act deal with such wills.

Conditions of making privileged Will:-

There are the following conditions for making a privileged Will-

(a) Such Will may be oral or in writing.

(b) The testator should make it before two witnesses.

(d) If such Will is handwritten, it need not be signed or attested.

(e) If it is written by somebody and signed by the testator, it need not be attested.

(f) Verbal instructions in the presence of two witnesses are valid, Will.

(2) Unprivileged Will[6]:-

The Will made by any other person except the above-mentioned will is unprivileged. It is an ordinary will. Ss. 63 and 64 of the Indian Succession Act deal with such types of wills. Such Will must be in writing, signed by the testator, and attested by at least two witnesses.

V. Revocation, alteration or revival of Will (S. 70 and 71):-

The testator can revoke or alter an existing unprivileged will –

By making another will or Codicil,
By some writing declaring an intention to revoke the will. The writing must be executed in the same manner as a will.
By burning, tearing or otherwise destroying.
By direction with the intention of revoking the same.
By marriage (However, Hindu and Muslim will, will not automatically be revoked on the marriage of testator) (S. 70).

Illustrations

(i) A has made an unprivileged will. Afterwards, A makes another unprivileged will which purports to revoke the first. This is a revocation.

(ii) A has made an unprivileged will. Afterwards, A, entitled to make a privileged will, makes a privileged will, which purports to revoke his unprivileged will. This is a revocation.

The testator may revoke a privileged Will or Codicil by an unprivileged will or by any act expressing an intention to revoke it, or by any way mentioned above (S. 72).

Revival of Privileged Will (S. 73):-

An Unprivileged Will can be revived by re-execution or by a codicil executed in the same manner as a will, showing an intention to revive it.

VI. Muslim Will (Wasiyat):-

The law of will among Muslims differs from the law of Will governing Hindus, Christians, Shaikhs, and Jains, etc. It is governed by their personal law and not by the Indian Succession Act of 1925.

1. Capacity to make Will:-

Any person who is 18 years of age or above and is of sound mind is eligible to make a will. In fact, the age of the majority among Muslims is the age of puberty, which is presumed to have been acquired at 15 years of age. However, with respect to making, will the provisions of the Indian Majority Act apply even among Muslims?

2. Form of making will:-

Muslim law does not lay down any specific formality for making Will. The Will of a Muslim can be oral or in writing. It may even be by gestures. If it is in writing, no signature of the testator is required; it needs no attestation even. However, it needs to be clear, concise and legible.

3. As to the bequest:-

Muslims can bequest in favour of non-Muslims also. He can even bequest for religious and secular purposes. He can bequest the individual as well as institutions. However,-

(a) No Muslim can bequest more than one-third of his estate left after deducing debts and funeral expenses of the diseased testator. The remaining two-thirds share is to be succeeded by the testator’s legal heirs.

However, in following exceptional circumstances, even whole property may be bequeathed by the Muslim viz. –

(i) When the testator has no heir.

(ii) When heirs consent for a bequest in excess of one-third share,

A Muslim can gift the whole of his property during his lifetime. However, he cannot do so through Will.

(b). A Muslim cannot bequeath to an heir-

It means a Muslim can bequeath to a stranger but not his own heirs. It is because Muslim law does not permit discrimination among heirs.

4. Revocation of Will:-

The provisions regarding revocation are the same as those under the Indian Succession Act. Similarly, the persons regarding the execution of Will are similar.

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Short Notes

1. Probate[7]:-

I. Definition of Probate:-

2 (f) of the Indian Succession Act, 1925 defines “Probate’ as 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.

The will needs to be submitted for Probate after the Testator’s death. Probate means a copy of the will, certified under the seal of a competent Court, with a grant of administration of the estate to the testator’s executor. Only a letter of administration can be granted to the executor of a will.

II. Effects of Probate:-

Probate has the following two effects, viz.

(i) It is the official evidence of an executor’s authority.

(ii) A probate granted by a competent court is conclusive evidence of the validity of a Will.

Thus, for example, if, as per the will, the Executor applies to a company for the transfer of the testator’s shares to the legatee, the Company would ask for a letter of administration. Otherwise, it would not transfer the shares.

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2. Codicil[8]:-

Definition of ‘Codicil’ (S. 2 (b))[9]:-

‘Codicil’ means ‘an instrument, made concerning a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will’.

In other words, a Codicil is a supplement or addition to a will that adds, explains, modifies, or revokes provisions of an already existing Will. Thus, for example, if the testator wants to change the name of Executor or Legatee or add or substitute some properties in the will, he can do it by way of Codicil.

Codicil must be in writing, signed by the testator, and attested by the witness. This means that it requires the same formalities as a will. It is treated as a part of the will and not as a different document. There may be several codicils to a will.

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3. Lapsing of legacy[10]:-

Legacy in Will fails or lapses in the following circumstances-

a) If the legatee dies before the testator.
b) Legacy to a spouse lapse by divorce.
c) If a Muslim disposes of more than 1/3 of his estate by way of Will, the legacy as to the extra portion lapses.
d) Legacy fails if the testator does not own the property at the time of his death.
e) If the legatee kills the testator.
f) If the legatee disclaims legacy.
g) If the legatee is one of the attesting witnesses.
h) If not enough property remains after paying off debts, the funeral expenses of the testator.

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[1] मृत्युपत्राने मिळकतीची वसालात [ वसीयत द्वारा आय की संपत्ति]

[2] मृत्युपत्र न बनविता [ बिना वसीयत किए]

[3] AIR 1922 P.C. 162

[4] (1872) 9 Beng. 377 (A.C.)

[5] विषेश अधिकारातील मृत्युपत्र [ विशेष शक्तियों में विल्स]

[6] सर्वसाधारण मृत्युपत्र [ सामान्य इच्छा]

[7] मृत्युपत्र प्रमाण [ विल मात्रा]

[8] जेाड मृत्युपत्र [ जेड का मृत्युलेख]

[9] Indian Succession Act, 1925

[10] मृत्युपत्रातील मिळकत नमुद व्यक्तीस केव्हा हस्तांतरित होत नाही. [ जब वसीयत में आय उक्त व्यक्ति को हस्तांतरित नहीं की जाती है।]