Wills under the Indian Succession Act

1. What a will is, and who may make one

Section 2(h) of the Indian Succession Act, 1925 defines a will as 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. A codicil (section 2(b)) is an instrument explaining, altering or adding to a will, and is treated as part of it. A will is ambulatory: it speaks from death and may be revoked or altered at any time while the testator is competent (section 62).

Part VI does not apply to the wills of Muslims (section 58). It applies to Christians, Parsis and others, and, through section 57 and Schedule III and section 30 of the Hindu Succession Act, 1956, to the wills of Hindus, Buddhists, Sikhs and Jainas.

Capacity (section 59). Every person of sound mind, not being a minor, may make a will. The Explanations add that a married woman may bequeath what she could alienate in life; that deaf, dumb or blind persons are not incapable if they know what they are doing; that a person ordinarily insane may make a will in a lucid interval; and that no one may make a will while in a state of mind, from intoxication, illness or any other cause, in which he does not know what he is doing. Section 61: a will, or any part of it, caused by fraud, coercion or such importunity as takes away the free agency of the testator is void. Persuasion and flattery that leave the testator's judgment free do not invalidate it.

2. Unprivileged wills: execution and attestation (section 63)

Every testator other than a soldier employed in an expedition or engaged in actual warfare, an airman so employed, or a mariner at sea, must execute his will as follows:

• (a) Signature. The testator signs or affixes his mark, or someone else signs in his presence and by his direction.
• (b) Placement. The signature or mark must be so placed that it appears it was intended to give effect to the writing as a will. It need not be at the foot.
• (c) Attestation. The will must be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark (or seen another sign for him in his presence and by his direction), or has received from the testator a personal acknowledgment of his signature or mark. Each witness must sign in the presence of the testator. The witnesses need not be present at the same time, and no particular form of attestation is needed.

A will need not be registered; registration under section 18 of the Registration Act, 1908 is optional. It need not be on stamp paper. Section 67: a bequest to an attesting witness or his or her spouse is void, but the will itself remains validly attested. Section 68: an executor or interested person is a competent witness. Section 64: documents referred to in a duly attested will as then written may be incorporated by reference.

3. Privileged wills (sections 65 and 66)

A soldier employed in an expedition or engaged in actual warfare, an airman so employed, or a mariner at sea, who has completed eighteen years, may make a privileged will (section 65). Section 66 relaxes the formalities. The will may be written or oral. If written wholly by the testator it need be neither signed nor attested; if written by another and signed by him, it need not be attested; if not signed, it is still his will if written at his direction or recognised by him. Written instructions, or verbal instructions given before two witnesses and reduced to writing in his lifetime, take effect as his will if he dies before it can be executed. An oral will is made by declaring his intentions before two witnesses present at the same time, and it becomes null one month after he, being still alive, ceases to be entitled to make a privileged will.

4. Revocation and revival

• By marriage (section 69): every will is revoked by the testator's marriage, except a will made in exercise of a power of appointment over property that would not pass to his representatives in default. This rule does not apply to Hindus, Buddhists, Sikhs and Jainas (proviso to section 57).
• By another will or codicil, or by a writing declaring an intention to revoke, executed like a will (section 70).
• By destruction: burning, tearing or otherwise destroying the will by the testator, or by someone in his presence and by his direction, with the intention of revoking it (section 70). Accidental destruction does not revoke.
• An unattested alteration made after execution has no effect, except on words it renders illegible (section 71). A revoked will is revived only by re-execution or by a duly executed codicil showing an intention to revive it (section 73).

5. Construction, briefly

• No technical words are needed; it is enough that the intention can be known (section 74).
• The meaning of a clause is collected from the entire will (section 82), and the testator's intention is to be given effect as far as possible (section 87).
• Where two clauses are irreconcilable, the last prevails (section 88).
• A will or bequest that is too uncertain to be carried out is void (section 89).
• Words describing the subject refer to property answering the description at the testator's death (section 90).
• Extrinsic evidence is admissible where the words are clear but fit more than one person or thing, to show which was meant (section 80, a latent ambiguity), but not to fill a gap or cure an ambiguity apparent on the face of the will (section 81).

6. Void bequests (sections 112 to 118)

• Section 112: a bequest to a person by a particular description is void if no one answering the description exists at the testator's death (with an exception for deferred gifts to a relative of a specified degree).
• Section 113: a bequest to a person not in existence at the testator's death, subject to a prior bequest, is void unless it comprises the whole of the remaining interest of the testator.
• Section 114 (rule against perpetuity): no bequest is valid if vesting may be delayed beyond the lifetime of one or more persons living at the testator's death and the minority of a person in existence at the end of that period.
• Section 115: a bequest to a class is void only as to the members caught by section 113 or 114, not as to the whole class.
• Section 116: a bequest intended to take effect after or on the failure of a prior bequest void under sections 113 or 114 is also void.
• Section 117: a direction to accumulate income beyond eighteen years from the testator's death is void to the extent of the excess, subject to exceptions such as the payment of debts.
• Section 118: a person having a nephew, niece or nearer relative could bequeath to religious or charitable uses only by a will executed at least twelve months before death and deposited within six months in a place of safe custody (Parsis excepted). In John Vallamattom v. Union of India, 2003 INSC 322, (2003) 6 SCC 611, the Supreme Court struck down section 118 as violating Article 14: it applied in practice to Christians alone and imposed an arbitrary restriction on their freedom to give to charity. The section remains in the printed text but is void.
• Section 127: a bequest on a condition contrary to law or morality is void.

7. Proof of a will

Section 68 of the Indian Evidence Act, 1872 (now section 67 of the Bharatiya Sakshya Adhiniyam, 2023) requires at least one attesting witness to be called to prove a document required by law to be attested. In H. Venkatachala Iyengar v. B.N. Thimmajamma, 1958 INSC 98, AIR 1959 SC 443, the Supreme Court laid down the approach still followed:

• A will is proved like any other document, except that attestation must also be proved.
• The onus is on the propounder to prove that the testator signed the will, that he was of sound and disposing mind, and that he understood its nature and effect and put his signature of his own free will.
• Where the evidence is satisfactory on these points, the onus is discharged.
• If there are suspicious circumstances (a shaky signature, a feeble mind, unnatural or unfair dispositions, or the propounder taking a prominent part in the execution and receiving a substantial benefit), the propounder must remove them to the satisfaction of the court before the will can be accepted as the last will.
• Fraud, coercion or undue influence, where alleged, must be proved by the person who alleges it.
• The court's conscience must be satisfied; a will is not to be treated as proved merely because it is formally valid.

In Jaswant Kaur v. Amrit Kaur, 1976 INSC 258, (1977) 1 SCC 369, the Court applied these principles to reject a will surrounded by suspicious circumstances that the propounder failed to explain.

How this is examined

Expect “Distinguish privileged and unprivileged wills”, “Explain the rules of execution of an unprivileged will”, and short notes on revocation of wills, codicil, or suspicious circumstances. A problem may give a will attested by one witness, or a bequest to an attesting witness, or a will where the main beneficiary drafted it and brought the testator to sign: apply section 63, section 67 and Venkatachala Iyengar respectively.