Wills (Part 1): Basics of a Will

ESTATE PLANNING
Wills (Part 1): Basics of a Will
Shashi Bekal, Advocate

Abstract Black’s Law Dictionary defines ‘will’ as, “the legal

In this article, an attempt has been made to expression or declaration of a person's mind or wishes
discuss the basics of making a Will and the as to the disposition of his property, to be performed or
laws governing it. This article will be helpful for take effect after his death”. Therefore, a will is a wish
individuals, and advocates, chartered accountants or desire of a person regarding the disposition of
and consultants who advise families on succession his property after his death. The person making
planning. The author aims to cover aspects such a will is called a testator. A will thus can also be
as Intestate succession, Will of Non-residents, defined as a legal declaration of the testator’s
amendments to a Will, execution of a Will, intentions as regards his property.
Income-tax implications, implications of the law Part IV of the Indian Succession Act, 1925 deals
of evidence and other aspects in the subsequent with “Testamentary Succession”. The same is
articles which will follow. divided into 23 Chapters ranging from section 57
Abstract to section 191 of the Indian Succession Act, 1925.
According to section 2(h) of the Indian Succession
1. An Introduction to Wills Act, 1925, “will” means the legal declaration of the
2. Terminologies associated with a Will intention of a testator with respect to his property
which he desires to be carried into effect after his
3. Nature of a Will death. Therefore, it can be said that a will is an
4. Reasons to Make a Will instrument of assignment.

5. Who can make a Will According to section 3(64) of the General Clauses
Act, 1897, a ‘will’ shall include codicil and
6. Who can be a beneficiary under a Will every writing making a voluntary posthumous
7. What can be Willed disposition of property.

8. The ingredients of a valid Will and other According to section 31 of the Indian Penal Code,
safeguards. 1860, A ‘will’ denotes any testamentary document.

9. Registration and Stamp Duty Albeit, there is a presumption that the concept
of wills originated in English jurisprudence, its
10. Dénouement existence under Hindu law is not unknown.
Under the Dayabhaga system of Hindu law, a
1. An Introduction to Wills father had the right to bequeath his ancestral
In simple terms, a ‘will’ is the intention of a person property to the exclusion of certain children was
to devolution of their properties after their death. recognized in 1800 AD.
The word ‘testament’ originates from testio menties, The Hon’ble Calcutta High Court in the case of
which means “the determination of the mind”. Jotendra Mohan Tagore v. Ganendra Mohan Tagore, 9

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Wills (Part 1): Basics of a Will

Bengal LR 377 (PC) held that a will is a disposition 2.7. Executor: As per section 2(c) of the Indian
of property, to take effect upon the death of the Succession Act, 1925, “executor” means a
donor, though revocable in his lifetime, is, until person to whom the execution of the last
revocation, a continuous act of gift up to the Will of a deceased person is, by the testator's
moment of death, and does then operate to give appointment, confided.
the property disposed of to the persons designated
2.8. Legacy: A legacy is basically a testamentary
as beneficiaries.
gift of personal property from a deceased
individual through a will.
2. Terminologies associated with a
2.9. Legal representative: As per section 2(11)
Will of the Civil Procedure Code, 1908, “legal
2.1. Attestation: As per section 63(c) of the representative” means a person who in law
Indian Succession Act, 1925, the act of the represents the estate of a deceased person,
witness placing their signature on the will and includes any person who intermeddles
in the presence of the testator. with the estate of the deceased and where
2.2. Administration: As per section 2(a) of the a party sues or is sued in a representative
Indian Succession Act, 1925, ‘administration’ character the person on whom the estate
means a person appointed by competent devolves on the death of the party so suing
authority to administer the estate of a or sued.
deceased person when there is no executor. 2.10. Probate: As per section 2(f) of the Indian
2.3. Beneficiary/Legatee: The person or Succession Act, 1925, “probate” means the
organization to whom you bequeath your copy of a will certified under the seal of a
assets in your will. court of competent jurisdiction with a grant
of administration to the estate of the testator.
2.4. Bequest: It is the act of giving property
under a Will after the death of the testator. 2.11. Residual legatee: The beneficiary of the
There is no immediate transfer of property residue under the will.
when any property is bequeathed; it 2.12. Residue: It is the surplus or residue of the
becomes effective on the death of the deceased's property, after payment of debts
testator. There are three types of bequest viz. and legacies.
1. Onerous Bequest 2. Contingent Bequest 3.
Conditional Bequest. 2.13. Testator/Testatrix: The person making the
will is called a ‘testator ’. Testatrix is an
2.5. Codicil: As per section 2(b) of the Indian antiquated term used for a female testator
Succession Act, 1925, means an instrument
made in relation to a Will, and explaining,
altering or adding to its dispositions, and 3. Nature of a Will
shall be deemed to form part of the Will. A will is an ambulatory document which is
revocable during the lifetime of the testator and
2.6. Domicile: There are two elements that takes effect only after the death of the testator.
constitute a domicile viz. 1. Residence and The document can be modified or revoked during
2. Intention to remain there forever unless the lifetime of the testator.1 Any clause in the will
circumstances alter the intentions. Sections which cannot be revoked will render the Will
7 to 17 of the Indian Succession Act, 1925, void.2 Further, during the existence of the testator,
deal with the aspect of ‘domicile’. a Will has no legal effect and cannot be ordered
1. Thakur Umrao Singh and another v. Thakur Lachman Singh & Another 33 All 344(PC)
2. Sagar Chan Mandal v. Digambar Mandal 14 CWN 174

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 Wills (Part 1): Basics of a Will

to be produced. A suit cannot be filed against the wrong hands (immoral family members). There
testator for unilaterally revoking a Will.3 is also an element of peaceful transfer and tax
Therefore, a will comes into force only after the planning associated with a Will
death of the testator. An interesting question arose
before the Hon’ble Income-tax Appellate Tribunal 5. Who can make a Will?
– Mumbai Bench in the case of JCGT v. Shreyans J. As per section 59 of the Indian Succession Act,
Shah [2005] 95 ITD 179 (MUM.)(TM) that whether 1925, every person of sound mind not being
civil death i.e., adopting sanyas, can be considered a minor may dispose of his property by will.
for the purpose of a will. It was held that it is According to the explanation provided therein,
difficult to treat such a document as a ‘will’. a married woman may dispose of by will any
property which she could alienate by her own act
4. Reasons to make a Will during her life. Further, persons who are deaf or
There are several reasons why one should make a dumb or blind are not thereby incapacitated for
fill. Firstly, it determines who will manage the estate making a will if they are able to know what they
of the testator. Secondly, it saves time, money and do by it. Further, a person who is ordinarily insane
energy for the beneficiaries. It reduces the chance may make a will during an interval in which he is
of long-drawn litigation and court battles. Thirdly, of sound mind. Also, no person can make a will
it decides how the estate has to be divided and while he is in such a state of mind, whether arising
distributed. Fourthly, it helps protect the interest from intoxication or from illness or from any other
of minors by allowing the testator to nominate cause, that he does not know what he is doing.
guardians. Further, one could even have funeral
The Hon'ble Allahabad High Court in the case of
instructions or leave a part of the estate for their
Krishna Kumar v. Kayastha Pathshala AIR 1966 All
favourite cause. It is therefore advisable to make a
570 (All)(HC) held that a testamentary capacity
will at an early age due to the uncertainty of life.
should not be judged by any absolute standards
In the event, there is no Will, the succession and but as relative to a particular testamentary act.
devolution of properties will be intestate i.e., the
Section 11 of the Indian Contract Act, 1872,
properties will go to the legal heirs as per Indian
provides that a person is competent to contract
Succession Act, 1925, or Hindu Succession Act,
on attaining the age of majority. Section 3 of
1956 or Mohammedan Law.
the Indian Majority Act, 1875, every person
When a person changes their religion, for example, domiciled in India attains the age of majority upon
converts from Hinduism to Christianity, they will completing the age of eighteen. Therefore, a minor
be bound by the laws of the Indian Succession Act, is not competent to make a Will.
1925.4 The law governing at the time of death will
The law on succession requires that the making
decide the intestate succession.5 Section 213 of the
of a will be a purely personal act and cannot be
Indian Succession Act, 1925 will apply to Wills
delegated to someone else.
made by Christians and Muslims.6
Therefore, a Will allows a testator to peacefully 6. Who can be a beneficiary under a
transfer properties to his family and friends. It also
Will?
helps the testator safeguard the special interest of
Any person, including a deity, minor, infant
certain people (faithful caretakers or friends) and
(including a child env entre sa mere) or lunatic
also ensures that the properties do not go into the
3. Rambhajan v. Gucharan ILR 27 All 14
4. Kamawati v. Digbijai Singh AIR 1922 Privy Council 12 AIR 1932 Oudh 85.
5. Dwarka Nath Singh and others v. Mt. Raj Rani and others AIR 1932 Oudh 85
6. Winifred Nora Theophilus v. Lila Deane and others AIR 2002 Delhi 6

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Wills (Part 1): Basics of a Will

can be a beneficiary under a Will. Under Muslim 7. What can be Willed?

law, bequeathing property to an heir without Any self-acquired property can be willed subject
the consent of other heirs is not valid. A juridical to certain exceptions.
entity is not merely an association of personas and
letters of administration can be granted to it.7 As discussed earlier, a liability attached to a
property goes along with the property. This
A will can be made in favour of would-be family is known as an onerous bequest/legacy. The
members such as grandson, daughter in law et beneficiary/legatee can take nothing by it unless
cetera.8 they accept it toto. To mean the legatee/beneficiary
shall have to accept the bequest along with the
A beneficiary or legatee has the right to renounce
obligation affixed therewith. Where the obligation
the property. To the extent a beneficiary or legatee
to perform a marriage of a daughter of the testator
renounces the property, succession will be intestate
was attached to the Will and marriage was
unless specified otherwise in the Will. In case the
performed but the legatee contributed nothing, it
property is attached with liability, the legatee has
was held that he is non-suited by section 122 of the
to accept the liability along with the property.
Indian Succession Act, 1925 and is not entitled to
This is called onerous bequest and the legatee
bequest as per the Will.9
shall have to discharge the liability. Section 168 of
the Indian Succession Act, 1925, states that if any Where a Will contains two separate and
action is necessary to confirm the testator’s title to independent bequests to the same person, the
the bequeathed property, the same has to be done legatee is at liberty to accept one of them and refuse
at the cost of the testator’s estate. the other, although the former may be beneficial
and the latter onerous. The legatee has a right to
A Witness cannot also be a beneficiary under a renounce the property. If the legatee renounces
Will. Section 67 of the Indian Succession Act, 1925, the property, the succession shall be considered as
deals with the effect of gift to attesting witness. It intestate succession, unless and until it is specified
provides that the attestation will not fail and the in the Will, as to the legatee in substitution of a
Will will be valid but the bequeath fails so far as legatee who renounces the property.
the same is to the person so attesting or the wife or
husband or any person claiming under him. Where property specifically bequeathed is subject
at the death of the testator to any pledge, lien
However, a legatee under a Will does not lose or encumbrance created by the testator himself
his legacy by attesting a codicil which confirms or by any person under whom he claims, then,
the Will. This section is not applicable to the unless a contrary intention appears by the 'Will',
Wills of Hindus by virtue of section 57 read with the legatee, if he accepts the bequest shall, accept
Schedule III of the Indian Succession Act, 1925 subject to such pledge or encumbrance and shall
as such legatees under the Will of such persons be liable to make good the amount of such pledge
do not forfeit their legacy on becoming attesting or encumbrance in terms of section 167 of the
witnesses. In the case of Christians, section 67 Indian Succession Act, 1925. Thus, any liability
of the Indian Succession Act, 1925, would apply. affixed with the asset had to be discharged by the
Section 68 of the Indian Succession Act, 1925 legatee. Such liability on its discharge would be
reconfirms the position that a witness can always considered an "improvement" and added to the
prove the execution of a Will. cost of the asset.

7. Banaras Hindu University v. Houri Dutt Joshi (1949) ALJ 523

8. CIT v. P. Bhandari (1984) 147 ITR 500; L Gouta, Chand another v. CIT (1989) 176 ITR 442; Sakhti Charities v. CIT (1984) 149
ITR 624 and CIT v. M.K. Chandrakant (1997) 225 ITR 101.
9. Manmohan Singh v. Jogender Kaur 2003 (1) Civil Law J 880

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The Hon’ble Supreme Court in the case of R. possession will stand excluded even though
M. Arunachalam vs. CIT, (1997) 227 ITR 222 (SC)/ the original tenant with whom the Landlord
(1997) 141 CTR 348 (SC) approved of the decision contracted is dead.
of Hon’ble Gujarat High Court in the case of CIT
vs. Daksha Ramanlal, (1992) 197 ITR 123 (Guj.) / Therefore, unless the contract specified otherwise,
(1992) 105 CTR 207 (Guj.) where it was held that tenancy rights cannot be bequeathed.
the payment made by a person. For the purpose of Share in a Hindu Undivided Family as a
clearing off the mortgage created by the previous Coparcener: On a joint reading of sections 6
owner is to be treated as a cost of acquisition of and 30 of the Hindu Succession Act, 1956, it
the interest of the mortgagee in the property and can be understood that a Hindu Coparcener
is deductible under section 48 of the Income-tax is empowered to will his share in the Family
Act, 1961. property.
The Hon’ble Supreme Court in V. S. M. R. This view was upheld by the Hon’ble Himachal
Jagdishchandran (Decd) By LRs. v. CIT. (1997) Pradesh High Court in the case of Kartari Devi and
227 ITR 240 (SC) / (1997) 141 CTR 361 (SC) Others v. Total Ram 1992(1) Shim LC 402, which
distinguished between the liability created by was later affirmed by the Hon’ble Supreme Court
the self and the liability created by the previous in the case of Tek Chand and another v. Mool Raj and
owner. It has been held that where a mortgage Others 1997 (2) HLR 306.
was created by the previous owner during his
lifetime and the same was subsisting on the Share in a private trust: Only a beneficiary of a
date of his death, the successor obtains only determinate private trust (being an irrevocable
the mortgagor's interest in the property and by trust) can transfer their interest by way of Will.
discharging the mortgage debt he acquires the This view is supported by the decision of the
mortgagee's interest in the property and, therefore, Hon’ble Supreme Court in the case of Canbank
the amount paid to clear off the mortgage is the Financial Services Ltd. v. Custodian and Others AIR
cost of acquisition of the mortgagee's interest 2004 SC 5123. The transfer should be in accordance
in the property which is deductible as cost of with section 58 of the Indian Trust Act, 1882. The
acquisition under section 48 of the Income-tax Hon’ble Karnataka High Court in the case of CWT
Act, 1961. v. Indumati R. Kirloskar 1988 (3) KarLJ 377 has held
‘transfer under section 58 of the Indian Trust Act,
Ancestral property cannot be Willed: Ancestral 1882 and Transfer of Property Act, 1882 should be
properties cannot be Willed or gifted away, subject understood in the same sense.
to certain conditions as other family members also
have a share in the ancestral property. Share in a revocable or indeterminate trust cannot
be transferred or Willed.
Tenancy rights cannot be Willed: The Hon’ble
Supreme Court in the case of Bhavarlal Labhchand Life interest in property: A life interest is an
Shah v. Kanaiyalal Nathalal Intawala AIR 1986 SC interest in the property during their lifetime and
600 and Vasant Pratap Pandit v. Dr. Anant Trimbak after their death passes on to the legatee. Such
Sabnis (1994) 3 SCC 481 while dealing with the an interest is prescribed under section 119 of the
erstwhile law i.e., Bombay Rents, Hotels and Indian Succession Act, 1925.
Lodging House Rates Control Act, 1947 (succeeded The Hon’ble Supreme Court in the case of
by Maharashtra Rent Control Act, 1999) has held Lakshmana Nadar and Others v. R. Ramier AIR 1953
that the Legislature could not have intended SC 304, held that a widow who only possessed
to confer such a right on the testamentary heir. life interest in the property could not dispose of
Otherwise, the right of the Landlord to recover the same.

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Agricultural land: On the issue of whether 6. It is advisable that the testator signs the Will
agricultural land can be gifted/ Willed or not, in the same language in which the Will is
reference is drawn to the decision of the Hon’ble written. This helps to demonstrate that the
Supreme Court in the case of Vindo Sakarlal testator is aware of the contents of the Will.
Kapadia v. State of Gujarat CA. No. 2573 of 2000 dated
7. Shaky or unclear signatures do not render
June 15, 2020, where it was held that agricultural
the Will invalid. The genuineness can be
land cannot be willed to a non-agriculturist
established by the attesting Witnesses.
as transfer and alienation of agricultural land
stemmed from Entry 18 List II of the Constitution 8. If the testator is old or ill, it is advisable to
of India, and the primary concern was to grant obtain a medical certificate stating that he is
protection persons from disadvantaged categories. in the state of bequeathing property and the
Applying the same principles, it should be kept in testator is aware of his actions.
mind that the donee must also be an agriculturalist
9. It is not necessary that a Will has to be
and due permission of the Collector has been
written in own hand. The Hon’ble Supreme
obtained.
Court in the case of Mathew Oommen v.
Sseela Mather AIR 2006 SC 786 approved
8. The ingredients of a valid Will and a Will drafted by a Senior Advocated and
other safeguards his junior was also one of the attesting
The ingredients of a valid Will and other witnesses.
safeguards for a robust Will are as under: 10. Although it is not necessary to state the
1. Before drafting a Will, it is important to reasons for bequeathing property to
determine the domicile of the testator a specific person or excluding a specific
and the various movable and immovable person/heir, it is advisable to do so to
properties owned by the testator and the avoid any challenge to the Will or other
geographical locations of the immovable unintended consequences.
properties. 11. A Will should be attested/witnessed by two
2. In the event, there are properties in foreign persons. It is not necessary that both the
countries. It is advisable to separate Wills witnesses be present at the same time. It is
for properties situated in each country. advisable to have the full name and address
of the witnesses. This is necessary for omnia
3. A Will should be drafted in simple and clear praesumuntur rite esse acta i.e., all acts are
language. It is advisable to avoid legal or presumed to be rightly done.
technical terms.
12. As per section 67 of the Indian Succession
4. A Will has to be in writing. An oral/verbal Act, 1925, A witness cannot be a legatee.
Will can only be made by soldiers, airmen
and mariners in warfare. This is also known 13. It is not necessary that a Will has to be
as a privileged Will. However, sections 65 executed on stamp paper or registered.
and 66 of the Indian Succession Act, 1925 However, it is advisable to register a Will
dealing with privileged Will do not apply and to execute it on a non-judicial stamp
to Hindus. paper to exuberate confidence.

5. It should bear the signature or thumb 14. A Will may be executed before a Notary i.e.,
impression of the testator and it should an officer duly authorized to authenticate
appear to give effect to the Will. It is documents. Getting a Will registered by a
advisable to sign each sheet/page of the Will. Notary Public serves the same purpose as

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that of depositing a Will with the Registrar Under section 18 of the Registration Act, 1908,
of Documents the registration of a Will is not compulsory. The
Hon’ble Supreme Court in the case of Ishwardeo
15. It is advisable to specifically name all the
Narain Singh v. Kamla Devi and others AIR 1954
legatees and the properties bequeathed to
SC 280 held that by mere non-registration of the
them. Gifts given to any legatee in the past
Will, an inference cannot be drawn against the
can be mentioned.
genuineness of the Will. However, it is advisable
16. Life interest in a property to any beneficiary to register it as it provides strong legal evidence
is to be specifically specified. about the validity of the Will. Once a Will is
registered, it is placed in the safe custody of the
17. It is advisable that a residuary legatee
Registrar and therefore cannot be tampered with,
should also be named in case there is any
destroyed, mutilated or stolen. It is to be released
residuary legacy.
only to the testator himself or, after his death, to
18. Directions to donate organs can also be part an authorized person who produces the Death
of the Will. Certificate
19. As per sections 112 and 113 of the Indian It is advisable to execute a Will on a non-judicial
Succession Act, 1925, there cannot be a stamp paper. As per Section 3, Schedule 1 of
direct bequest to a person who is not in the Indian Stamp Act, 1899, no stamp duty is
existence at the time of the death of the chargeable on a Will.
testator. In such an event the testator should
assign the possession of such properties to It is also advisable to deposit a Will in accordance
an existing person until the existence of the with sections 42 and 43 of the Registration Act,
legatee. 1908.
20. Any inconsistency with the provisions of
the Indian Succession Act, 1925, should be 10. Dénouement
avoided. For example. The Will should not Adolf Hitler ’s famous quote, “The amount of
conflict with the Rule against Perpetuity. money that is in your bank at the time of your death
is the extra work you did which wasn't necessary”.
21. It is advisable to have two or more However, the least one could do is ensure that
executors, jointly or in an alternate. The their ‘extra work’ is utilized in the manner in
executor's name, address, powers et cetera which they intended. A Will is a measure that
to be specified. ensures this intention.
22. The Will should specify that it is the last will
Hence a Will is a crucial document and utmost
and all earlier Wills are revoked.
care must be taken while executing the same to
23. The date and manner of discharge of avoid any unintended consequences. It is also
liabilities and distribution of properties are essential and advisable for everyone to execute a
to be specified. Will to avoid intestate succession.
24. The date of the Will and the place of its The series of articles which is proposed to be
execution should be mentioned. written on the law governing Wills is aimed to
cover, aspects such as Intestate succession, Will of
9. Registration and Stamp Duty Non-residents, amendments to a Will, execution of
As per section 18(e) of the Registration Act, a Will, Income-tax implications, implications of the
1908, registration of a Will is optional, albeit, it is law of evidence and other relevant aspects.
advisable to register it to avoid any doubts on the
genuineness. mom

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