Statutory Requirements Of A Valid Will And Its Execution

WILL – MEANING:

• A Will is a legal document that sets forth the testator’s wishes regarding the distribution of his/her property after his/her death.
• It should be in written; however, it may be either handwritten, printed or typed.
• The testator must sign at the end of the Will.
• The said Will must be witnessed by at least two persons present at the time of signing by the testator.
• The said two persons who witnessed must also acknowledge they were present and must sign the Will as witnesses in presence of the testator.
• Creation of a Will is the only remedy to be sure that the assets of the testator go to the person he/she loves.

IMPORTANCE OF A WILL:

There often arises problems and complications when a person dies without a Will. Yet, many of us put off from making a Will and not realise the predicament we put our family in, after our death. The importance of Will cannot be stressed enough as lakhs of civil cases are pending before various Courts for resolving inheritance disputes.

 Failure to prepare a will typically leaves decisions about your estate in the hands of judges or state officials and may also cause family strife. Further, all Wills are revocable at any time during the life of the person and is a confidential document. Hence, it is important for everyone to know about the benefits of having a Will and create a Will. 

DEFINITIONS:

The following are the terms a one person will come across when dealing with a Will.

• A Will is defined as “the legal declaration of the intention of the testator, with respect to his property, which he desires to be carried into effect after his death.” In other words, a Will or a Testament means a document made by person whereby he disposes of his property, but such disposal comes into effect only after the death of the testator.
• Codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will.
• Executor is the legal representative for all purposes of a deceased person (testator) and all the property of a testator vests in him.
• Legatee/Beneficiary is a person who inherits the property under a Will.
• Probate is a copy of the Will, certified under the seal of a competent Court.
• Testator is a person making a Will and executing it.

ESSENTIALS:

The six essential elements of a valid will are:

• As a writer of the will, or testator, you must be at least 18 years of age.
• You must have testamentary capacity, and must state in writing that you are of sound mind and are writing the will of your own accord.
• A statement declaring the document as your will must be included.
• An executor should be appointed.
• The document must contain at least one provision that names a personal guardian for a minor child and/or at least one provision providing for the allocation of your estate.
• If the will is not written in your handwriting (i.e., typed), you must sign the will and it must be attested to by two witnesses who are not beneficiaries and who saw the will signed by you.

KINDS OF WILL:

According to the Indian succession Act there are basically two types of wills.

• Privileged Wills
• Unprivileged Wills

PRIVILEGED WILLS:

These are the wills made by a soldier employed in an expedition or actual warfare, or an airman so employed or engaged or a mariner at sea. Persons such employed cannot be expected to have the resources and time for completing all the formalities required for validation of the will, therefore they have been excused from such legal requirements and given the privilege of making simpler wills.

Execution of privileged will:

The execution of privileged wills shall be governed by the following rules: –

• Privileged wills may be in writing, or may made by word of mouth.
• The wills should be written wholly by the testator, with his own hand. In such case it need not signed or attested.
• It may be written wholly or in part by another person, and signed by the testator. In such case it need not attested.
• If the instrument purporting as wills written wholly or in part by another person and not signed by the testator. The instrument shall be deemed as testators will, if shown that it was written by the testator’s directions or that he recognized it as his will.
• If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, may invalid, provided that his non-execution of it can reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument.

UNPRIVILEGED WILLS:

All other kinds of wills, which are not privilege wills are called unprivileged wills. These are the wills that need or require certain conditions to be fulfilled for the wills to be valid. These are the wills commonly made by the masses.

Execution of unprivileged will:        

Section 63 of the Indian Succession Act (Act XXXIX of 1925) reads as follows;

Execution of unprivileged Wills – Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:

• Testator shall sign or affix his mark to the will, or signed by other person in his presence and direction.
• The signature or mark of the testator, or the person signing for him, shall place that it shall appear as it intended to give effect to the writing as a will.
• The will shall be attested by two or more witnesses. Each of two seen the testator sign or affix his mark to will or seen other person sign the will.
• The signing of the will should be:
• in the presence and by the direction of the testator,
• or has received from the testator a personal acknowledgment of his signature or mark,
• or of the signature of such other person; and
• hence, each of the witnesses shall sign the will in the presence of the testator.

Section 68 of the Indian Evidence Act, 1872:
“Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving it’s execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided…”
Section 71 of the Indian Evidence Act, 1872:
“Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.”
To say that a Will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act as mentioned above are to be complied with.

CIRCUMSTANCES UNDER WHICH THE GENUINENESS OF A WILL CAN BE QUESTIONED:

Typically, it can very difficult to challenge a will. Interestingly, 90 per cent of the wills pass through without being challenged. Seen by the courts as the voice of the testator or the will-maker, who is no longer there to defend himself, courts stick stringently to wills.

But, if you have an interest in the will, you can challenge it. And, if you are successful in convincing the court, it can be voided in its entirety or in part.

These are the seven grounds on which one could challenge a will: 

Lack of due execution:

A valid will has to be in writing, and signed by the testator in the presence of two witnesses, who must also attest the will. If the process is not followed to the hilt, the will can be challenged in the court of law.

Lack of testamentary intention:

Here, the person has to prove that the testator had not intended to make a will. This plea is rarely used as it is difficult to prove.

Lack of testamentary capacity:

The law requires that people above 18 years can make a will. Adults are presumed to have testamentary capacity. It can be challenged on the basis of senility, dementia, insanity, or the testator was under the influence of a substance, or in some other way lacked the mental capacity to form a will. Basically, to challenge a will based on mental capacity, you must show that the testator (the person who created the will) did not understand the consequences of making the will at the time of its creation.

Lack of knowledge or approval:

Here you can take the ground that the testator did not, in fact, know what was in the will when he signed it.

Undue influence:

You can challenge a will by showing that the will was procured by fraud, forgery, or undue influence. This usually involves someone manipulating a vulnerable person into leaving all or much of the property to the manipulator. The term “undue influence” merely means that the person lacked the free will to bargain because of the manipulator.

Fraud or forgery:

The burden of proof would be on you to establish that the will was forged (not made by the testator) or was made as a result of fraudulent act.

Revocation: Claims by family:

A family member can challenge a will on the grounds that they were not provided for adequately in the will. The law states that the head of a family is responsible for the proper maintenance of certain close family members who are specified in the Hindu Succession Act. If a proper provision is not made for these people in the will, or they are not adequately provided for by the laws of intestacy, they can make a claim in the Family Court or the High Court asking for provision to be made for them out of the estate.

EXAMPLES:

Testamentary capacity:

X was 79-years-old when he decided to prepare his Will. He had been under the care of a doctor for dementia and needed 24-hour care. His son, Y, insisted that he prepare a Will and called a friend of his, who is an attorney, to prepare one for his father. In the will, all the property was left to Y, to the exclusion of his other siblings. Given X’s mental state, it is unlikely that he possessed the competency needed to prepare a Will. As such, if this instrument were submitted for probate, the court undoubtedly would reject it.

Signature Requirement:

Nagesh purchased a pre-printed Will to use as his Will. At the beginning where it says “Last Will and Testament of __________” he signed his name. He filled in the rest of the form with his bequests and named an executor. When Nagesh died, the will was considered valid because he had signed somewhere on the instrument, although it was in the beginning rather than the end.

Witnesses and Beneficiaries:

Arjun, who is single, executed a will that makes gifts to his sister, Savita, and his neighbour, Bharath. Bharath is one of the attesting witnesses. The purging statute applies to eliminate Bharath’s gift because he was an attesting witness to a will that made a beneficial gift to him.

Tarun signs his will in a hospital bed, and then lies down on his back. The two witnesses take the will into the hallway, where they sign it. If Tarun could have seen the witnesses through the doorway had he looked, they signed in his presence. Conversely, if Tarun’s line of sight was interrupted by the wall, the witnesses did not sign in his presence and probate will be denied.

Attestation:

Mamtha asks two bank employees to witness her signature on a document right before she is to leave the country on a business trip. The employees watched Maggie sign the document; then they added their signature. The document, however, contained no attestation clause, and the witnesses testified that they did not know whether they were signing a will, a power of attorney or some other document. As such, the will was not validly executed.

Undue Influence or Fraud:

Rajesh was 79 years old when he decided to prepare his will, at the urging of his nephew, Sethu. Despite his age, Rajesh was mentally capable of executing his will. In addition, he had raised Sethu since the age of 6, after Rajesh’s brother and sister-in-law (Sethu’s parents) were killed in a fire. Accordingly, he trusted Sethu implicitly and felt comfortable having Sethu’s wife, Trisha (an attorney) prepare his will. Unbeknownst to Rajesh, Sethu had changed certain provisions in the will (omitting the provision that gave his brother, Santhosh, $35,000) so that he would get a larger portion of the estate than Rajesh had originally intended. Due to Sethu’s fraudulent conduct, Rajesh’s will could be subject to either partial or full invalidation if the injured party (i.e., Santhosh) presses the issue during probate.

Absence of mistakes:

Karan was 79 years old and his wife, Anita was 75 years old when they decided to prepare their wills. By mistake, during the execution of the wills, they signed each other’s will. If the mistake is not remedied, neither signed document will be admissible to probate.

RELEVANT PROVISIONS AND STATUTES:

Applicable laws:

• The Indian Succession Act, 1925
• Hindu Personal Laws
• Muslim Personal Laws
• The Indian Registration Act, 1908

Special Provisions:

Hindus, Sikhs, Jains and Buddhists Will:

• A Will is not revoked upon the marriage of a Hindu, Sikh, Jain or Buddhists.
• The executor can also be the witness to the Will.
• A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai.

Parsis and Christians Will:

• A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai.
• On the marriage of a Parsi or Christian testator, his/her Will stands revoked.

Muslims Will:

• Muslim Personal Law governs a Muslim testator’s power to make a Will, the nature of the Will, its execution and attestation thereof etc. Under the Muslim Personal Law, a Muslim testator can make a Will orally or in writing and no form is required for such writing. However, it is preferable to have a written Will. If the Will is in writing it need not be attested. It may be noted that the provisions of the Indian Succession Act do not generally apply to a Muslim testator unless specifically stated in the Act.
• In India, a person who is a major and of sound mind can make a Will and he can dispose of all or any part of his property by Will. However, there are two basic restrictions on the power of a Muslim testator to make a Will,
• A Muslim can bequeath only one-third of his property by Will.
• The heirs of a Muslim testator may consent to bequest in excess of one-third of the testator’s assets.
• A Muslim may change his Will during his lifetime or cancel any legacy. A Will may also become void if a Muslim testator, after making the Will, becomes unsound of mind and continues to be so till his death. Similarly, a bequest which is contingent, or conditional or in the future or is alternative to another, pre-existing one, would be void. If an executor is appointed by a Muslim testator, the powers and duties of the executor will be in accordance with the provisions of the Indian Succession Act which have been discussed elsewhere

CASE LAWS:

The following are the cases relating to genuineness of a Will:

In Jaswant Kaur Vs. Amrit Kaur and others the Honourable Apex Court held that the cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. It is an acknowledged principle of law that each decision must be applied according to the facts and circumstances of the given case.

          In PPK Gopalan Nambiar Vs. Balakrishnan Nambiar and others, the Honourable Apex Court held that there must be real, germane and valid suspicious features and not fantasy of the doubting mind.

          In Savithri and others Vs. Karthyayani Amma and others, the Honourable Apex Court held that the natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be suspicious circumstances.

          In R.Vasanthi Vs. Janaki Devi and others, the Hon’ble Court held that the registration of a Will may having regard to circumstances prove its genuineness.

          In Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (late) by L.Rs and others, the Honourable Apex Court held that debarring natural heirs should not raise any suspicion with regard to execution of the Will in dispute.

          In Sridevi & Ors vs Jayaraja Shetty & Ors on 28 January, 2005, in was held that ”It is well settled proposition of law that mode of proving the will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case. 

The following are the cases relating to attestation of witnesses:

The Hon’ble Court in Lakshmi Ammal v. Lakshmanan (1988) held -“A will is a document required by law to be attested and under Section 68 of the Indian Evidence Act it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.”

          In Girja Datt Singh v. Gangotri Datt Singh, it was held that in order to prove the due attestation of the Will, the pro-pounder of the Will, has to prove that the two witnesses saw testator sign the will and they themselves signed the same in the presence of the testator.