The essential characteristics of Will are that:
1. It must be a declaration of an INTENTION.
2. Declaration of intention must be for disposition of property of TESTATOR/TESTARIX.
3. Disposition so brought about must come into effect after the death of Testator/ Testatrix.
4. It is always revocable so long as testator/testatrix is alive, and he can amend, vary or revoke his earlier intention.
5. Testator/Testatrix was capable of understanding.
Form of the will
Form: No form is prescribed under the Indian Succession Act. A Nomination form filled in for RF. or Gratuity can also be taken as a will for the limited purposes. No technical words are necessary for making a will. It need not be on any court paper.
No stamp papers, no stamp duty, no court fee, no registration. It may, however, be noted that although registration of will is not necessary, nevertheless, in order to give creditability to it, very often, people go for registration. If one goes for registration of one's will, it has now become compulsory for the will maker to have a certificate of a qualified doctor stating that the will maker is of a sound mind.
The kinds of will, other than prescribed under the Act, may be as under:-
1. ORAL WILL - Nuncupative. Such will is declared by the Testator before sufficient witnesses, Dying declarations.
2. INOFFICIOUS WILL - It is a Will which is not consonant with the natural affection of the Testator, e.g., making a will in favour of a stranger.
3. MUTUAL WILL - Two persons make the wills for reciprocal benefits. It becomes irrevocable (1) after deaths of any one of them OR (2) if the surviving Testator takes benefit of the will.
4. JOINT WILL - Disposing of either individual property or a joint property is a clear case of joint will. It is a single document but in law, it contains two wills. If one of them dies, it operates as the will of the deceased without awaiting the demise of the joint maker of that will. Therefore, probate can be obtained, after the death of any one of the will maker.
5. CONTINGENT/CONDITIONAL WILL - It takes effect only when the given contingent happens. For example, when will maker states - "If I do not come back" - then such a Will is Contingent Will' because there is a contingency - Will Maker may come back or may not come back. But when Will Maker states - "if you marry my daughter" then such a Will is 'Conditional Will' because "marriage' is not the contingency but a condition to be fulfilled by.
6. HOLOGRAPH - is a will written by Testator himself and hence, such will is not set aside easily. It can be included in the privileged will.
The Indian Succession Act, however, divides all these wills only into two.
1. Privileged Will
2. Unprivileged Will
Section 57 makes applicable the provisions of the Indian Succession Act, 1925, to Hindu wills subject to the restrictions and modifications mentioned in the schedule.
Section 58 Provides that the law laid down in the Act in respect of will shall not be applicable to Muslims.
Section 59 Lays down as to who can make a will.
Persons capable of making the will
Every person
1. Of sound mind &
2. Not being a minor can make a will.
3. A married woman suffers from no disability.
4. A person who is DEAF, DUMB or BLIND can also make a will if capable of understanding or knowing as to what by it.
5. A person who is insane can make a will during the period where there is no attack of insanity.
As a matter of General Rule, age of minority is a bar for making a will. However, Section 60 carves out an exception to the general rule and a father is allowed to make a will even if he (father) is minor. The purpose of will is also in that case limited to the extent of appointing a guardian for his minor child.
In short, the testator's age, disease and mental weakness are all important considerations while considering the testamentary capacity of the Testator.
What is required for the validity of a will is that the Testator should have been able to comprehend the nature and effect of the disposition at the time of making the will. The Testamentary capacity has to be judged not by an absolute standard but as relative to a particular testamentary act.
Mere ability to sign or ability to maintain ordinary conversation does not necessarily constitute a sound mind and disposing mind. The apex Court held that the Testatrix was of sound mind (although she was 70 years of age and although physically incapable of signing her name) and upheld the will made by the widowed lady.
As a general rule, a minor is debarred from making a will. However, Section 60 carves out an exception to the effect that a father (and father alone - none else) has power to make a will to appoint a guardian for his minor children.
Will by fraud and coercion
A person who has made a will cannot be called to identify his signature nor can he be called to find out as to in what circumstances he was required to make the will. The Law, therefore, takes upon itself to ascertain that the will is, in fact, a genuine document and that they will maker had exercised his volition freely.
Section 61 Says that a will (or any part thereof) obtained by
1. Fraud
2. Coercion
3. Importunity or undue influence is void to the extent; it is caused by the same,
(i) Fraud
Fraud has the same meaning as is given in Section 17 of the Indian Contract Act, 1872.
FRAUD (Suggestio Falsi (mispresentation)
1. Illustration 1 in the section,
2. Of material facts,
3. Must have been relied upon and
4. Acted upon.
Suppressio Veri (concealment of the facts) by a party under obligation to point out. If no duty, no concealment.
(ii) Coercion
When pressure is exerted or force is used, it is called coercion. The coercion is defined under section 15 of Indian Contract Act, 1872 but for the purpose of Indian succession Act, 1925, not every fear that will have the effect of annulling the Will. The Act recognizes only the 'just fear' for annulment of Will. Thus, the fear of death, fear of bodily hurt or fear of imprisonment is such 'just fears' for which Will can be annulled. But unless actual force is proved no will can be invalidated.
(iii) Importunity - (Undue influence)
Section 16 of the Contract Act 1872 defines the undue influence. However, in cases of will, unless undue influence has a tendency to coerce the person, it is not a factor which invalidates the will. The Delhi High Court has held that:
1. Persuasion
2. Appeal of affections
3. Ties of relationship
4. Sentiments of gratitude
5. Past services
6. Future destitution
Are legitimate influences and not undue influences
The immoral consideration or irreligious consideration does not amount to coercion or fraud so long as there is a free will.
The undue influence may become real in cases where the Testator is old and feeble in physical & mental health. The mere proof of:
1. Parent/Child
2. Guardian/ward
3. Wife/husband
4. Physician/doctor/solicitor/Parent/client
Does not raise a presumption of undue influence to vitiate the will UNLESS it is shown that the person is in dominating position and has in fact so dominated the will of another as to destroy his Free Will it is well said that
A Tesator may be led but he cannot be driven.
Mere existence of influence is not sufficient or enough and the influence must be undue. Necessarily therefore, a distinction must be drawn between "Due influence" and "Undue influence".
Burden of proof lies on one who impeaches the Will. The burden is not discharged by merely showing that the beneficiary had the power over the Testator but it must be further shown that power was really exercised. The circumstances which generally raise suspicion must be dispelled forthwith.
Section 62 states that the declaration as regards the disposal of the property of the Testator must be intended to take effect after his death. One of the tests to ascertain whether the instrument is a will or Deed is to see if it is revocable. Even if the Will is expressly made to be irrevocable, it can be revoked by the maker of it so long as the testator is living. That is the purpose of section 62 of the Act.
Section 63 does not apply to Muslims but it applies to Hindus. It lays down the formalities of making a will. The formalities of a will are different from the proof of a will. The formalities are regulated by this section. The proof of will is governed by Section 68 of the Evidence Act which lies down that a will can be proved and it can be admitted for a Probate.
Ordinarily, a will has to be signed by Testator. But sometimes, Testator instead of signing it puts his thumb mark either because he is illiterate or he is too weak. The General Clauses Act defines "sign" as to include even the thumb impressions. Where a Testator was in a habit of putting his rubber stamp which used to be impressed by his servant, the court held it to be execution of the will.
There is no rule of Law as to at which place the signature can be put. It can be put at the top or on the side also. However, signature can be so placed that it should appear that it was intended to sign the document and thereby to give effect to the writing as a Will.
The proof of attestation does not mean that the attesting witness know the contents of the will. The attesting witness merely signifies that the Testator has appended his signature. Any person is competent to attest a will. Even a minor can be an attesting witness (Section 118 of evidence Act) because attesting witness is not required to know the contents of the Will. The apex court has held that attestation is mandatory.
The Will can be in any language, Sanskrit, French, Latin, etc. It can be printed, written in ink, ball pen, and pencil or even by paint. Merely because there are blanks, the will is not vitiated.
If only a part of the will is obtained by FRAUD, still a probate can be granted for the rest of the part of the will, if the remaining part can independently be implemented.
Section 64 lays down that if Will refers to any other documents or paper that will become a part of the Will.
u can write will at ur own or with the help of lawyer.
