DPC PRACTICAL TRAINING

ASSIGNMENT
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INDEX [Link]

TOPIC 1 - WILL AND CODICIL…………………………………………………….…..… 02

Essential Features of a Will………………………… …………………………….... 03

Kinds of Wills……………………………………………………………………… 04

Who Can Make a Will?/ Persons Incapable of Making a Will……………………... 05

Revocability of Will……………………………………………………………….... 06

Alterations in Will ……………………………………………………………… ….. 07

Wording of The Will ………………………………………………………………. . 07

Execution of a Will……………………………………………………………… . …08

Signature of The Testator…………………………………………………………... . 08

Restrictions on A Will……………………………………………………………… . 09

Invalid Wills……………………………………………………………… . ………...11

Format of a Will………………………………………………………………. ……. 13

Draft of a Will………………………………………………………………………...13

CODICIL……………………………………………………………………… ……………. 15

Draft- Codicil……………………………………………………………………… …….…...18

TOPIC 2 - SPECIAL POWER OF ATTORNEY……………………………….…………….19

General Power of Attorney vs. Special Power of Attorney………………………..… 21

Specimen of Power of Attorney to Advocate for Court Case ………….…………….21

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TOPIC 1 - WILL AND CODICIL

A will or testament, also known as Vasiyat, is a legal declaration by which a person, the testator,
names one or more persons to manage his or her estate and provides for the distribution of his or
her property at death. For the devolution of property not disposed of by will, see inheritance and
intestacy.

Though it has at times been thought that a "will" was historically limited to real property while
"testament" applies only to dispositions of personal property (thus giving rise to the popular title
of the document as "Last Will and Testament"), the historical records show that the terms have
been used interchangeably. Thus, the word "will" validly apply to both personal and real property.
A will may also create a testamentary trust that is effective only after the death of the testator.

The origin and growth of Will among the Hindus is unknown. However, Wills were well known
to the Mohammedans and contact with them during the Mohammedan rule, and later on with the
European countries, was probably responsible for the practice of substituting informal written or
oral testamentary instruments with formal testamentary instruments. The Indian Succession Act,
1925, consolidating the laws of intestate (with certain exceptions) and testamentary succession
supersedes the earlier Acts, and is applicable to all the Wills and codicils of Hindus, Buddhists,
Sikhs and Jains throughout India. The Indian Succession Act, 1925, does not govern
Mohammedans and they can dispose their property according to Muslim Law.

Definition of Will
Will: A Will is a solemn document by which a dead man entrusts to the living to the carrying out
of his wishes. S. S.2(h) of Indian Succession Act, 1925 provides that Will means the legal
declaration of the intention of a person with respect to his property, which he desires to take
effect after his death Will has been defined in Corpus Juris Secundum as A ‘Will’ is the legal
declaration of a man’s intention, which he wills to be performed after his death, or an instrument
by which a person makes a disposition of his property to take effect after his death.
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Essential Features of a Will

A Will can be made at any time in the life of a person. A Will can be changed a number of times
and there are no legal restrictions as to the number of times it can be changed. It can be withdrawn
at any time during the lifetime of the person making the Will. A Will has to be attested by two or
more witnesses, each of who should have seen the testator signing the Will.

The essential features are:

1. Legal declaration: The documents purporting to be a Will or a testament must be legal, i.e., in
conformity with the law and must be executed by a person legally competent to make it. Further
the declaration of intention must be with respect to the testator’s property It is a legal document,
which has a binding force upon the family.

2. Disposition of property: In a Will, the testator bequeaths or leaves his property to the person
or people he chooses to leave his assets/belongings. A Hindu person by way of his Will can
bequeath all his property. However, a member of an undivided family cannot bequeath his
coparcenary interest in the family property

3. Takes effect after death: The Will is enforceable only after the death of the testator
Under section 18 of the Registration Act the registration of a Will is not compulsory. Also, the SC
in Narain Singh v. Kamla Devi has held that mere non-registration of the Will an inference cannot
be drawn against the geniuses of the Will. However, it is advisable to register it as it provides
strong legal evidence about the validity of the Will. Once a Will is registered, it is placed in the
safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen.
It is to be released only to the testator himself or, after his death, to an authorized person who
produces the Death Certificate.

Since a testamentary disposition always speaks from the grave of the testator, the required standard
of proof is very high. The initial burden of proof is always on the person who propounds the Will.
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Kinds of Wills

Conditional Wills: A Will may be made to take effect on happening of a condition.

In Rajeshwar v. Sukhdeo the operation of the Will was postponed till after the death of the
testator’s wife. However, if it is ambiguous whether the testator intended to make a Will
conditional, the language of the documents as well as the circumstances are to be taken into
consideration.

Joint Wills: Two or more persons can make a joint Will. If the joint Will is joint and is intended
to take effect after the death of bot

h, it will not be admitted to probate during the life time of either and are revocable at any time by
either during the joint lives or after the death of the survivor.

Mutual Wills: Two or more persons may agree to make mutual Wills i.e., to confer on each other
reciprocal benefits. In mutual Wills the testators confer benefit on each other but if the legatees
and testators are distinct, it is not a mutual Will. Mutual Wills are also known as reciprocal Wills
and its revocation is possible during the lifetime of either testator. But if a testator has obtained
benefit, then the claim against his property will lie. Where joint Will is a single document
containing the Wills of two persons, mutual Wills are separate Wills of two persons.

Privileged Wills: Privileged Wills are a special category of Wills and other general Wills are
known as unprivileged Wills. S.65 of ISA provides that a Will made by a soldier or an airman or
a mariner, when he is in actual service and is engaged in actual warfare, would be a privileged
Will. S.66 provides for the mode of making and rules for executing privileged Wills. Ss. 65 and
66 are special provisions applicable to privileged Wills whereas other sections relating to Wills
are general provisions which will be supplementary to Sections 65 and 66 in case of privileged
Wills.
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Who Can Make a Will?

S.59 of Indian Succession Act provides that every person who is of sound mind and is not a minor
can make a Will.

Persons Incapable of Making a Will-

Persons of Unsound Mind

U/s. 59 of ISA the existence of a sound mind is a sine quo non for the validity of the Will. Most
of the Wills are not made by young persons who are fully fit but are made by persons who are aged
and bed ridden Hence, law does not expect that the testator should be in a perfect state of health ,
or that he should be able to give complicated instructions as to how his property was to be
distributed. A sound disposing mind implies sufficient capacity to deal with and understand the
disposition of property in his Will -

1) the testator must understand that he is giving away his property to one or more objects
2) he must understand and recollect the extent of his property 3) he must also understand the
persons and the extent of claims included as well as those who are excluded from the Will. In
Swifen v. Swifen it was held that the testator must retain a degree of understanding to comprehend
what he is doing, and have a volition or power of choice.

Minors: A minor who has not completed the age of 18 years is not capable of making Wills. The
onus of proof on determining whether the person was a minor at the time of making a Will is on
the person who has relied upon the Will. S.12 of the Indian Contract Act also provides that a minor
is incompetent to contract.

Other Persons Incapable of Making a Will

Explanation I to S.59 of ISA provides that a Hindu married woman is capable of disposing by Will
only that property which she can alienate during her lifetime.

Explanation II provides that the persons who are deaf, dumb or blind can prepare a Will if they are
able to prove that they were aware of what they were doing. Explanation III provides for persons
who are mentally ill and insane. However subsequent insanity does not make the Will invalid i.e.,
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if a person makes a Will while he is of sound mind and then subsequently becomes insane the Will
is valid and is not rendered invalid by subsequent insanity. Further a person of unsound mind can
make a Will during his lucid interval. A Will made by a person who is intoxicated or is suffering
from any other illness, which renders him incapable of knowing what he is doing, is invalid.

Though the burden of proof to prove that the Will was made out of free volition is on the person
who propounds the Will , a Will that has been proved to be duly signed and attested Will be
presumed to have been made by a person of sound mind, unless proved otherwise. Further, a
bequest can be made to an infant, an idiot, a lunatic or other disqualified person as it is not
necessary that the legatee should be capable of assenting it.

Revocability of Will

S.62 of the Indian Succession Act deals with the characteristic of a Will being revocable or altered
anytime during the lifetime of the testator.

S. 70 of ISA provides the manner in which it can be revoked

A mere intention to revoke is not an effective revocation. The revocation of the Will should be in
writing and an express revocation clause would revoke all the prior Wills and codicils. If there is
no express clause to the effect then the former Will would become invalid to the extent of its
inconsistency with the latest Will, this is known as an implied revocation (however it should be
shown that the differences are irreconcilable). However, if there is no inconsistency between the
Wills then they cannot be considered as two separate Wills but the two must be read together to
indicate the testamentary intention of the testator.

Revocation can also be made in writing through declaring an intention to revoke and the writing
must be signed by the testator and attested by two witnesses. The deed of revocation has to be
executed in the same way as the Will itself.

The Will maybe burnt or torn by the testator or by some other person in his presence and by his
direction with the intention of revoking the same. The burning of the Will must be actual and not
symbolic. The burning must destroy the Will at least to the extent of his entirety. Further the Will
need not be torn into pieces. It would be sufficient if it is slightly torn with the intent of revocation.
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The Will can be revoked expressly by another Will or codicil, by implied revocation, by some
writing, by burning or tearing or by destroying otherwise. Cancellation of a Will by drawing lines
across it is not a mode of revocation. Under the Hindu Law the Will is not revoked by marriage or
by subsequent birth.

Alterations in Will

S.71 of ISA is applicable to alterations if they are made after the execution of the Will but not
before it. The said section provides that any obliteration, interlineations or any other alteration in
a Will made after its execution is inoperative unless the alteration is accompanied by the signatures
of the testator and the attesting witnesses or it is accompanied by a memorandum signed by the
testator and by the attesting witnesses at the end of the Will or some other part referring to the
alterations. the alterations if executed as required by the section would be read as a part of the Will
itself. However, if these requirements are not fulfilled then the alterations would be considered to
be invalid and the probate will be issued omitting the alterations. The signatures of the testator and
the attesting witnesses must be with regards to the alteration and must be in proximity of the
alteration. Further they should be in the Will itself and not in a separate distinct paper. But if the
obliteration is such that the words cannot be deciphered then the Will would be considered as
destroyed to that extent.

Wording of The Will

S.74 of ISA provides that a Will maybe made in any form and in any language. No technical words
need to be used in making a Will but if technical words are used it is presumed that they are in
used in their legal sense unless the context indicates otherwise. Any want of technical words or
accuracy in grammar is immaterial as long as the intention is clear.

Another general principle applied is that the Will is to be so read as to lead to a testacy and not
intestacy i.e., if two constructions are possible then the construction that avoids intestacy should
be followed.

Further there is another principle, which says that the construction that postpones the vesting of
legacy in the property disposed should be avoided. The intention of the testator should be decided
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after construing the Will as a whole and not the clauses in isolation. In Gnanambal Ammal v. T.
Raju Aiyar the Supreme Court held that the cardinal maxim to be observed by the Court in
construing a Will is the intention of the testator. This intention is primarily to be gathered from the
language of the document, which is to be read as a whole.

The primary duty of the court is to determine the intention of the testator from the Will itself by
reading of the Will. The SC in Bhura v Kashi Ram held that a construction which would advance
the intention of the testator has been favoured and as far as possible effect is to be given to the
testator’s intention unless it is contrary to law. The court should put itself in the armchair of the
testator. In Navneet Lal v. Gokul & Or’s the SC held that the court should consider the surrounding
circumstances, the position of the testator, his family relationships, the probability that he would
use words in a particular sense. However, it also held that these factors are merely an aid in
ascertaining the intention of the testator. The Court cannot speculate what the testator might have
intended to write. The Court can only interpret in accordance with the express or implied intention
of the testator expressed in the Will. It cannot recreate or make a Will for the testator.

Execution of a Will

On the death of the testator, an executor of the Will (executor is the legal representative for all
purposes of a deceased person and all the property of a testator vests in him. Whereas a trustee
becomes a legal owner of the trust and his office and the property are blended together) or an heir
of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if
they have any objections to the Will. If there are no objections, the court grants probate. A probate
is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the
genuineness of a Will. It is only after this that the Will comes into effect.

Signature of The Testator

S.63(a) of ISA provides that the testator shall sign or affix his mark. If the testator is unable to
write his signature, then he may execute the Will by a mark and by doing so his hand maybe guided
by another person. In another words a thumb impression has been held as valid.
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Restrictions on A Will

1. Transfer to unborn persons is invalid

Where a bequest is made to a person by a particular description, and there is no person in existence
at the testator's death who answers that description, the bequest is void. S.113 of Indian Succession
Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has to be created
in another person and the bequest must comprise of whole of the remaining interest of the testator.
In Sopher v. Administrator-General of Bengal a grandfather made the bequest to his grandson who
was yet to be born, by creating a prior interest in his son and daughter in law. The Court upheld
the transfer to an unborn person and the Court held that since the vested interest was transferred
when the grandsons were born and only the enjoyment of possession was postponed till, they
achieved the age of twenty-one the transfer was held to be valid.

In Girish Dutt v. Datadin , the Will stated that the property was to be transferred to a female
descendant (who was unborn) only if the person did not have any male descendant. The Court held
that since the transfer of property was dependent on the condition that there has to be no male
descendant, the transfer of interest was limited and not absolute and thereby the transfer was void.
For a transfer to an unborn person to be held valid, absolute interest needs to be transferred and it
cannot be a limited interest.

2. Transfer made to create perpetuity

S.114 of the Indian Succession Act, 1925 provides that no bequest is valid whereby the vesting of
the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the
testator's death and the minority of some person who shall be in existence at the expiration of that
period, and to whom, if he attains full age, the thing bequeathed is to belong.

The rule against perpetuity provides that the property cannot be tied for an indefinite period. The
property cannot be transferred in an unending way. The rule is based on the considerations of
public policy since property cannot be made inalienable unless it is in the interest of the
community. The rule against perpetuity invalidates any bequest which delays vesting beyond the
life or lives-in-being and the minority of the done who must be living at the close of the last life.
Hence property can be transferred to an unborn person who has to be born at the expiration of the
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interest created and the maximum permissible remoteness is of 18 years i.e., the age of minority
in India.

In Stanley v. Leigh it was laid down that for the rule of perpetuity to be not applicable there has to
be

1) a transfer

2) an interest in an unborn person must be created

3) takes effect after the life time of one or more persons and during his minority

4) unborn person should be in existence at the expiration of the interest

3. Transfer to a class some of whom may come under above rules

S.115 of ISA provides that if a bequest is made to a class of persons with regard to some of whom
it is inoperative by reasons of the fact that the person is not in existence at the testator's death or to
create perpetuity, such bequest shall be void in regard to those persons only and not in regard to
the whole class.

A number of persons are said to be a class when they can be designated by some general name as
grandchildren, children and nephews. In Pearks v. Mosesley defined gift to a class as a gift to all
those who shall come within a certain category or description defined by a general or collective
formula and who if they take at all are to take one divisible subject in certain proportionate shares.

4 Transfer to take effect on failure of prior Transfer

S.116 of ISA provides that where by reason of any of the rules contained in sections 113 and 114
and bequest in favour of a person of a class of persons is void in regard to such person or the whole
of such class, any bequest contained in the same Will and intended to take effect after or upon
failure of such prior bequest is also void.

The principle of this section is based upon the presumed intention of the testator that the person
entitled at the subsequent limitation is not intended to be benefited except at the exhaustion of the
prior limitation. In Girish Dutt case one S gave property to B for life and after her death if there be
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any male descendants whether born as son or daughter to them absolutely. In the absence of any
issue, whether male or female, living at the time of B’s death, the gifted property was to go to C.
it was held that the gift in favour of C was dependent upon the failure of the prior interest in the
favour of daughter and hence the gift in favour of C was also invalid. However alternative bequests
are valid.

Invalid Wills

Wills invalid due to fraud, coercion or undue influence

S.61 of ISA provides that a Will, or any part of Will made, which has been caused by fraud or
coercion, basically not by free will, will be void and the Will would be set aside.

Fraud: S.17 of the Indian Contract Act provides for fraud. Actual fraud can be committed through
1) misrepresentation

2) concealment . Fraud in all cases implies a willful act on the part of anyone whereby, another is
sought to be deprived by illegal or inequitable means, of which he is entitled to.

Coercion: S.15 of Indian Contract Act defines coercion. Any force or fear of death, or of bodily
hurt or imprisonment would invalidate a Will. In Ammi Razu v. Seshamma , a man threatening to
commit suicide induced his wife and son to give him a release deed. It was held that even though
suicide was not punishable by the Indian Penal Code yet it was forbidden by law and hence the
release deed must be set aside as having been obtained by coercion.

Undue influence: Undue influence u/s.16 of Indian Contract Act is said to be exercised when the
relations existing between the two parties are such that one of the parties is in the position to
dominate the will of the other and uses that position to obtain an unfair advantage over the other.
However, neither fiduciary relationship nor a dominating position would raise a presumption of
undue influence in case of Wills as all influences are not unlawful. Persuasion on the basis of
affection or ties is lawful. The influence of a person in fiduciary relationship would be lawful so
long as the testator understands what he is doing. Thus, it can be said that a testator maybe led but
cannot be driven.

Wills Void Due to Uncertainty

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S.89 of ISA states that if the Will were uncertain as regards either to the object or subject of the
Will then it would be invalid. The Will may express some intention but if it is vague and not
definite then it will be void for the reason of uncertainty. The Will may depose of the property
absurdly or irrationally i.e., the intention maybe irrational or unreasonable, but that does not make
it uncertain. For uncertainty to be proved it has to be proved that the intention declared by the
testator in the Will is not clear as to what is he giving or whom is he giving. Only if the uncertainty
goes to the very root of the matter, then only the Will has to be held void on the grounds of
uncertainty.

Will Void Due to Impossibility of Condition

S. 124 of ISA provides that a contingent legacy can take effect only on happening of that
contingency. A conditional Will is that will which is dependent on the happening of a specific
condition the non-happening of which would make the Will inoperative. S.126 of ISA provides
that a bequest upon an impossible condition is void. The condition maybe condition precedent or
condition subsequent.

Will void due to illegal or immoral condition

S.127 of ISA provides that a bequest, which is based upon illegal or immoral condition, is void.
The condition which is contrary, forbidden, or defeats any provision of law or is opposed to public
policy, then the bequest would be invalid. A condition absolutely restraining marriage would also
make the bequest void. S.138 of ISA provides that the direction provided in the Will as to the
manner in which the property bequeathed is to be enjoyed then the direction would be void though
the Will would be valid.

A sample Will-

Will is of two kinds -

Privileged - Made by special class of persons such as soldier at war). It need not be attested.
Unprivileged - Made by ordinary persons. Must be signed and attested by two persons.
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A person can make a Will anytime and any number of times. The most recent Will is the one that
takes effect. Explicitly canceling the previous Will is not required.
Registration of a Will is not necessary but is recommended.

Format of a Will-

Heading

Properties - their description and the beneficiaries

Name any sole beneficiary or universal legatee

Name the executor

Closing

Signature and attestation

Draft- Will

I Rahul Khanna son of Krishna Khanna , aged 40 yrs., resident of 657 Gopal Kunj, merit tower ,
Mumbai do hereby revoke all my previous Wills and Codicils and hereby make this my Will and
testament.

I further declare that I am in good mental health and in a sound condition of mind.

I hereby appoint my Geeta Khanna, as the sole Executor of this WILL.

The name of my wife is Geeta Khanna . We have two children namely, (1) Ritik Khanna (2)Jiah
Khanna , I own following immovable and movable assets.

1. One Apartment – 507 , Sagarmarg , Westin apartment , Sea-link , Worli , Mumbai.

2. Jewelry, ornaments, cash, National Saving Certificate, Public Provident Fund, shares in various
companies, cash in hand and also with certain banks, fixed deposit in PNB Kandivali branch
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All the assets owned by me are self-acquired properties. No one else has any right, title, interest,
claim or demand whatsoever on these assets or properties. I have full right, absolute power and
complete authority on these assets, or in any other property which may be substituted in their place
or places which may be Acquired or received by me hereafter.

I direct that any amount that may be determined as payable by me by way of debts, dues and
liabilities, including direct and others taxes, charges, land revenue, costs, fees, and expenses to be
paid by my son.

I hereby give, devise and bequeath all my properties, whether movable or immovable, whatsoever
and whosesoever to my wife, Geeta Khanna, absolutely forever.

IN WITNESS WHEREOF, I have to this my last Will set my hand this 5th day of JULY 2021 at
Mumbai

SIGNATURE OF TESTATOR

TESTATRIX SIGNED by the abovenamed Testatrix as his last WILL and Testament in our
presence, who appear to have perfectly understood & approved the contents in the presence of
both of us presents, at the same time who in his presence and in the presence of each other have
hereunto subscribed our names as Witnesses.

WITNESSES:

1. Sheela Dixit , Delhi

2. Priti Shinde, Mumbai

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CODICIL-

What is codicil?
The Indian Succession Act 1925 defines Codicil as an instrument made in relation to a will, and
explaining, altering or adding to its dispositions, and shall be deemed to form part of the will.

Put simply, it is a document signed by the testator (the person writing his Will) and the witnesses
to make changes in an existing Will. However, a Codicil is not a standalone document. It is a
part of the last Will of the testator.

“When the testator dies, both his original will and the codicil are submitted for confirmation or
approval from the court of competent jurisdiction, whereby the probate is procured. The probate
so obtained forms the basis for administration of the estate and distribution of the belongings of
the testator,” says Aradhana Bhansali, Partner, Rajani Associates. Probate means the copy of a
Will certified by a competent court.

If the Will is revoked by the testator himself or declared void by a competent court, then the
codicils attached to it also become void as the addendum itself is a continual document and
hence with a change in the base document the continual document loses relevance.

Useful for making small changes

Codicils are useful when you want to introduce small changes in the Will. These would primarily
include removal, addition or alteration in assets or the beneficiaries. For example, a Will may
have a mention of a particular piece of land that should be given to A. If A dies in the lifetime of
the testator, then the testator may want to give that piece of land to B. Such a change in intention
can be affected by writing a Codicil.

Codicils help the testator to make small changes in the estate plan. When the testator wants to
keep most of the Will static, but wants to bring in small changes, he/she should be using a
Codicil. One can appoint a new executor of the Will using codicil. One can also provide for
some assistance to a new entrant in the family – by marriage or by child birth. Codicils help you
accommodate your changing needs and your family’s dynamic aspirations over your lifetime.
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Codicils can also be used when you come across any ambiguity in your Will. Such ambiguity
can be done away by providing clarity in a codicil. For example, if a Will states that the testator’s
jewelry be divided among his/her daughter and daughter in laws, a vague mention may lead to
disputes. A codicil can be written, clearly mentioning each beneficiary’s share and the specific
type of jewelers.

Involved writing process

Though codicil is aimed at effecting minor changes, you have to follow the same process that
you will follow while making a Will. You will have to write and sign the Will. You need two
witnesses’ signatures. You may want to record this process using a camera, though it is not
mandatory.

“A codicil to a will does not revoke the Will, but merely records the modifications (in part or in
one or more parts) of the Will. Hence, being an extension or addendum of the Will, the process is
similar to that of making a Will. Hence the first para would provide a reference to the original
Will. Then, giving reference to the concerned paragraph, its replacement should be stated. In
case any specific paragraph needs to be deleted, the same should be mentioned clearly and the
replacement paragraph with all details must be provided,” says Rajat Dutta, founder of Mumbai
based Inheritance Needs Services.

Codicil should be an elaborate document and one should not leave scope for speculation. “If you
want to make a codicil, ensure that you clearly mention the intention behind the changes you
want to introduce,” says Neha Pathak, Head – trust and estate planning, Motilal Oswal Private
Wealth Management. This is especially true when you are changing beneficiaries. Clearly
mentioning the reasons behind writing a codicil will reduce the chance of litigation at the later
stage.

Registration of a Will is optional and so is the case with the codicil. However, you should be
consistent in your actions. “If the Will is registered, a codicil should logically be registered. The
rationale for the same is to imbibe authenticity of the codicil and also expect a non-litigation
scenario of a registered Will and a registered codicil,” says Dutta.
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You have to attach all codicils along with your Will. You can have as many codicils as you wish
throughout your lifetime, but make sure you follow the process mentioned earlier. If the codicils
are misplaced, then there is a chance that the executor may not come to know about your
changed intentions and may not fulfil them at all.

You should inform your family members, executors and other interested individuals about the
existence of such codicils and their whereabouts.

Not useful for structural changes

As stated earlier, codicils are to be used for minor changes. However, when you go for structural
changes, it is better to write a new Will. “When a Will requires an overall change or the
circumstances warrant changing most of the disposition or bequest, a new will is required by
revoking the earlier will,” says Bhansali. She further adds that in cases of major changes, a
codicil will not serve the purpose and may lead to disputes in the future among beneficiaries.

For example, if A has two sons and he has written a Will to bequeath his estate to his two sons
equally. A’s wife passes away and he remarries. His wife has a daughter from her first marriage.
Now he decides to bequeath all his wealth to his step daughter. It is a big change. This is not just
a minor change in beneficiaries. In this case, a codicil could create complications later. A new
will works better in such cases.

Many times, individuals bring in many changes to their last Will by writing multiple codicils.
This changes the structure of the Will without the testator knowing it. In such a scenario, a new
Will is better option.

If one has written too many codicils, then it is an operational nightmare for the executor at the
time of execution of the Will. To avoid such a scene, it is better to consolidate all your wishes
into a new Will. “While making a codicil, you have to follow the same process that you follow
while writing a Will. Hence, there isn’t much difference in the efforts involved. And hence, it
makes sense to go for new Will over a codicil,” says Neha Pathak.

Codicils must be used sparingly. Too many of them in a Will do not serve the purpose. In such
cases, it is better to go for a new Will.
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Draft- Codicil

Codicil to my last will and testament dated 5th day of JULY 2021

I, Mr. Rahul Khanna son of Krishna Khanna resident of Mumbai by religion Hindu, do hereby
declare this Codicil to my last Will (dated 15th JULY 2021), which I make on this 15th August.

I declare that I am in good health and possess a sound mind. This Codicil is made by me without
any persuasion or coercion and out of my own independent decision only.

The details of the Assets and Beneficiaries are as follows: Clause 1. My Farm house located at
Lonavala should be transferred in the name of Mrs. Geeta Khanna, W/o Rahul Khanna.

Clause 2. My House located at Mumbai should be transferred in the name of Mr. Raj Kapoor, S/o
Pritam Kapoor Date of Birth 20th June 1998)

Rest Clause 1 and Clause 2 of my will dated 10th August 2021 should be replaced by Clause 1
and 2 of this Codicil Signature of Testator

Witnesses We hereby attest that this Will has been signed by Shri Aditya Kapoor as his last Will
at Mumbai in the joint presence of himself and us. The testator is in sound mind and made this
Will without any coercion.

Signature of Witness

(1) Krutha parth

(2) Chinna swani

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TOPIC 2 - SPECIAL POWER OF ATTORNEY

Introduction

In the modern world where commerce and industry have assured large and long roles
to play , the need for entering into contracts of agreements in relation to business and
other transactions have become a common and necessary feature of daily life. As man
became busier it became more and more necessary for him to depend on others for
getting his things done. The hectic activities of the businessmen and industrialists have
made the execution of power of attorney for delegating his functions. Granting a Power
of Attorney is a legal process that involves the drafting of a document which assigns to
another person the power to act as your legal representative. Principal should be careful
while authorizing an agent as attorney to avoid inconvenience and expense of any legal
proceedings in the future.

Meaning of the term ‘Power of Attorney’

‘Power Of Attorney’ is an authority given by an instrument by one person, called as the

donor or principal, authorizing another person, called done or agent to act on his behalf.
There may be possibility of giving ‘Power of Attorney’ by two or more persons jointly
to one or more persons. Here a legal authority is given by the principal to the agent
which may be broad or limited and an agent can take all necessary decisions i.e.,
financial, property related matters and all other matters where principal cannot be
present to sign or in the case of principal’s illness and disability. A paper signed by
principal giving powers to an agent is sometimes itself called a power of attorney. A
paper giving a power of attorney should be clear and understandable.

Special Power of Attorney:

A special power of attorney is one by which a person is appointed by the principal to

do some specified act or acts. In this type of power of attorney, an agent conferred with
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a power to do specific act in a single or specified transactions in the name of the

principal.

Important Points-

• A special power of attorney allows a person (the principal) to authorize another

individual (the agent) to make legal decisions on their behalf.
• The agent can act on behalf of the principal only under specific, clearly defined
circumstances.
• A general power of attorney is broader, giving the agent the ability to make all
legal and financial decisions on behalf of the principal.

Understanding Special Power of Attorney

A power of attorney refers to an agreement between two individuals that allows one
individual to act on the other's behalf. For example, you might want a power of attorney
if you are out of the country and unable to carry out a business transaction yourself, or if
your abilities are limited by a medical condition. The person who initiates a power of
attorney, whether in oral or written form, is referred to as the grantor or principal. The
authorized individual named in the agreement is referred to as the attorney in fact or
agent. In the case of a special power of attorney, the actions that the agent can take are
limited to very specific circumstances.

Because this type of power of attorney is limited to what has been laid out in the signed
document, it is particularly important that the principal is very clear about the powers that
they want the agent to have. Additionally, the principal may create more than one special
power of attorney, naming a different individual in each one.
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General Power of Attorney vs. Special Power of Attorney

While a special power of attorney gives the agent authority for a limited set of actions
under a restricted set of circumstances—such as buying or selling a home, withdrawing
money from an account, or running a business—a general power of attorney is broader.

A general power of attorney grants the agent the legal right to make all financial and legal
decisions on behalf of the principal. An individual who will be out of the country for a
year may give an agent extensive power to carry out transactions such as personal and
business financial transactions, bill payments, life insurance purchases, charitable
donations, real estate management, and the filing of tax returns.

Specimen of Power of Attorney to Advocate for Court Case

BY THIS POWER OF ATTORNEY , I Karan Raj , son of Prithvi Raj residing at Pune . plaintiff in civil
suit No. 11017202 of 2021 hereinafter referred to as the said suit, hereby nominate, constitute and
appoint Shri Vikas Pande son of Shri Ratnajit Pande resident of Pune as my attorney for me, in my name
and on my behalf to do or execute all or any of the following acts or things in connection with the said
suit:

1. To represent me before the said court or in any other, where the said suit is transferred in connection
with the said suit.

2. To engage or appoint any solicitor, counsel, advocate, pleader or lawyer to conduct the said suit.

3. To prosecute the said suit and proceedings, to sign and verify all plaints, pleadings, applications,
petitions or documents before the court and to deposit, withdraw and receive document and any money or
moneys from the court or from the defendant either in execution of the decree or otherwise and sign and
deliver proper receipts for me and discharges for the same.

4. To apply for inspection and inspect documents and records, to obtain copies of documents and papers.

5. To compromise the suit in such manner as the said attorney shall think fit.

6. To do generally all other acts and things for the conduct of the said suit as I could have done the same
if I were personally present. And I hereby for myself, my heirs, executors, administrators and legal
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representatives, ratify and confirm and agree to ratify and confirm whatsoever our said attorney shall do
or purport to do by virtue of these presents.

IN WITNESS WHEREOF, I the said Raj Mathew has hereunto set and subscribed my hand this 19th day
of August 2021.

Signed and delivered by the within

named

WITNESSES:

1. Priti kombe

2. Suraj Singh

Identified by me

Vikas Pande
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THANK
YOU !!