What is a Will?
Will is a legal document, which a person of sound mind prepares during his lifetime, to bequeath his property to any person / persons, after his death. It will come into effect only when he dies.
The one who makes the Will or testament is called the Testator (Executant).
Distribution of property will be determined by Will
If a person dies leaving aside a Will, the distribution of his property among his legal heirs will be based on the Will.
Otherwise, the law of succession applicable to him will come into play for the purpose. In that case, the legal heirs who need special treatment cannot be taken care of, if there is no Will.
Many a time, the property of a person dying intestate may lead to never ending disputes and litigations, in case there is no Will.
Will must include every item of property
The Will must include every item of his property and to whom each one of the items is bequeathed to.
Will is something equivalent to a gift deed, but the difference is that the Will comes into effect after death of the testator, but the Gift Deed before his death.
The law that governs the making of a Will
The Indian Succession Act 1925 is the law that governs preparation of Will for Hindu, Christians, Parsis etc.
To Muslims, Muslim Personal Law is applicable.
Who can make a Will?
The law states that any person of full testamentary capacity has the right to prepare a Will and dispose of his property by such a Will.
No form is prescribed for a Will. So, anyone can make a Will in plain paper by using common words that the ordinary people use daily.
An insane person even can make a Will if it is made at an interlude when he is undergoing a period of sanity.
But a person cannot make a Will in a state of intoxication or when he does not know what he is doing or his mind is not sound. Any person who is not a minor and is of sound mind has the competency to make a Will to dispose of his property to anyone he desires.
A Will can be revoked or altered by the Testator during his life time when he remains legally and mentally competent to sell or dispose of his property. A Will must have reference to the death of the person so as to make it legally valid.
When he makes a new Will the earlier one will automatically become invalid. A person can make any number of Wills, but the last one alone will legally survive.
Testator’s mode of signing the Will
The testator shall either sign or affix his mark to the Will, or get it signed by somebody in lieu of putting his sign. Such signing by some other person must be done in his presence, under his direction. The signature shall appear as if it gives effect to the writing in the Will. The Will shall be signed at the foot or end thereof.
Sign or mark includes its grammatical variations and cognate expressions as well. The Section 3 (56) of the General Clauses Act 1897, defines what a sign is. Sign is therefore a mark to authenticate a document as a binding one on the person whose sign or mark is so written or affixed on it.
No Will can be considered valid unless it is in writing and executed as stipulated in the law.
Residuary legatee will get the surplus property
A residuary legatee is entitled to all property belonging to the testator of which he has not made a testamentary disposition to anyone else. A residuary legatee means that the person designated shall get the surplus or residue of the property.
The legacy, which lapses by reason of death of any other legatee before the testator’s death, goes to the residuary legatee.
If the legatee does not survive or live longer than the testator the assignment of property in the Will cannot take effect. The reason is that the Will can come into force only on the death of the Testator.
Executor enforces the Will after testator’s death
The Testator of a Will can appoint an Executor. The Executor has the authority to execute the Will when the testator dies. Any person can be appointed as the Executor of his Will by the Testator.
If an Executor has not been appointed by the Testator, the High Court or the District Court can appoint a person as Administrator to administer the estate by issuing Letters of Administration.
Even when a suit against a Will is pending in the court, the court can appoint an Administrator with all the powers of a General Administrator, except the power of distributing such estate.
The Propounder is the person who produces (propounds) the Will before the Court and seeks the Court order for disposal of the deceased person’s property as per the Will.
Executor has a role
The Executor of the Will has a prominent role to play in the execution of the Will. When an Administrator is not appointed by the testator, the court can issue an authority document called Letters of Administration to administer the estate, as specified in the Will.
If an executor dies before the Will is administered or when an administrator is not appointed, the Letters of Administration from the court will have to be obtained to put the Will into effect.
Testator’s intention paramount
A Testator, who has no proper understanding as to the nature of his property or the persons related to him, cannot make a legally valid Will. When a person makes an instrument considering it to be a Will without understanding the nature and content of the document, it cannot be considered a valid Will.
Even if the registration of the Will had happened without the Testator knowing what was being registered, then that instrument, though it is called a Will, cannot be considered a valid Will. If the registration of the Will was done in a cursory manner, the registration has no much sanctity. That the Will was registered alone is not sufficient to prove the genuineness of the Will. Registration may take place without the Testator / Executant really knowing what was being registered.
In interpreting a Will, the Testator’s intention is to be given effect to by the court. The court must put itself into the armchair of the Testator. The true intention of the testator is to be gathered by reading the Will in its entirety and not by giving undue importance to isolated expressions.
In a suspicious environment, the Administrator or the Propounder of the Will is under an obligation to dispel all the suspicious circumstances surrounding it.
No perpetuity in Will
A Will should not show any perpetuity in taking its effect. When legacy is given in connection with an uncertain event and no time is mentioned in the Will for its occurrence, the legacy cannot take effect.
Such a Will engrossed in perpetuity without any ending, is not a valid Will.
Attestation by witnesses
In the case of a Will, an attesting witness is the one who witnesses the testator making the Will by signing it. Unless the maker of the document wants the witness to attest it, the latter will not be considered an attesting witness even though he may have seen the persons executing it.
The execution and attestation of a Will are clearly distinct formalities. The former is the act of the parties; the latter is of the witnesses. In attestation clause of the Will, the witnesses certify that the instrument has been executed before them. A Will not attested is not a legally valid one. Attestation of a Will implies something more than merely putting a signature in the presence of the testator by someone who has seen the testator sign.
The witnesses are expected to see the testator sign the Will and then they sign it by themselves. A deed of Will requires to be attested by two or more witnesses. Both the testator and the witnesses should affix the sign in the presence of each other. However, not more than one witness need be present at the same time to attest the Will. The sign of the witness is his implied acknowledgement of the execution of the Will by the Testator.
An attesting witness is not expected to be very meticulous of the contents or all the details of the Will. For due execution of the Will, attestation by two or more witnesses is mandatory.
Execution (making or creation) of the Will means not only signing by the person executing the document but also the attestation by witnesses as required by law.
Characteristics of the attesting witnesses
Witnesses should be adults (of above 18 years of age) as per Black’s Law Dictionary, even though this has not been specifically mentioned in the law pertaining to Wills in India. A person below 18 years of age is not considered as a person of mental ability and capacity practically by any law enacted in India. In the case of a Will a minor is prevented from making it. Therefore, a minor should have no power to sign a Will as a witness by applying the doctrine of “due process”.
The dictionary again adds that the witness should be of sound mind and not under the influence of any drugs. The ideal witness has known the signers of the document for a long time. Such a witness should not have any financial interests regarding the instrument.
The witnesses, during the process of proving the Will, can be examined to know whether the testator has the intention and sound mental capacity to make the Will when they are called upon to testify the testator’s signature in the Will. The witnesses must be present when the testator is signing the Will.
A witness, who attests a Will, basically ensures that it is the testator who signed the Will in his/her presence and he can testify its authenticity. In case a witness is unable to see the testator sign the will he should receive from the testator a personal acknowledgement of his signature or mark made in the Will. One witness may see the testator signs the Will and another witness must receive from the testator an acknowledgement of his signature, before attesting the document. The sign of the witness is an implied acknowledgement by him of the execution of the Will by the Testator.
The witness is needed to testify the validity of the Will when someone questions the legality of the Will in a court. They can state whether the testator was of sound mind while making the Will and are clearly conscious of the contents of the Will. The attesting witness can observe the actions of the testator during the process of execution of the Will.
In short, they are the persons who prove that the Will was made from the testator’s free choice when he is no more alive.
Witness need not know the contents
The attesting witness, however, is not expected to know every detail of the contents of the will. His role is to make it clear that the Will was created by the person in question and he was of sound mental capability to make the Will. A Will requires that not less than two witnesses signed in it, in order to be held valid in law.
The beneficiary of the Will cannot be a witness. A person who has conflict of interest cannot be an attesting witness.
The witness (at least one of them) should survive the testator as they may need to testify the Will after his death.
What to do if the witness denies execution
As per Section 71 of the Indian Evidence Act if the attesting witness denies or does not recollect the execution of the document, its execution needs to be proved by other means. If the witnesses die or the Propounder cannot bring any of them to the court the Will has to be proved by other means or in the manner any other document is proved.
Similarly, as per Section 67 of the Indian Evidence Act, if a document is alleged to be signed by any person the signature of the said person or his handwriting must be proved. This has to be proved as provided for in Sections 45 or 47 of the Indian Evidence Act based on the opinion of the experts or the persons acquainted with the concerned handwriting.
Witness to prove soundness of testator’s mind
The Propounder of the Will has to prove that the execution of the Will was due and valid in law. The Propounder, with the help of the attesting witnesses, should remove the suspicion surrounding the execution of the Will by cogent and satisfactory evidence.
The Propounder has to prove that the testator had a sound state of mind, understood the nature and effect of the depositions, and put his signature to the document based on his own free will.
Will makes property distribution perfect
The Testator intends that the Will is to be used to distribute his property, name an executor, name guardians for children, regularise the debts, and much more after his death. He pre-plans who should get his property when he dies.
When a person dies without a Will or other plan for property distribution, the law of intestate succession will come into play to decide which family member will inherit the property in what proportion.
Proving the genuineness of the Will
The mode of proving a Will does not ordinarily differ from that of proving any other document, except the special requirement of attestation prescribed in the case of a Will as per Section 63 of the Indian Succession Act.
The onus of proving the Will is on the Administrator. In the absence of suspicious circumstances surrounding the execution of the Will, the proof of testamentary capacity and signature of the Testator, as required by law, are sufficient to discharge the onus of proving.
Proving the attestation
As per section 68 of the Indian Evidence Act, in order to prove a document that requires attestation, one attesting witness need to be called in to the court to provide evidence of its proper execution, if he/she is alive. The direct evidence of the attesting witness is primary evidence.
However, if no witness is alive then the signatures of the witnesses and the testator need to be proved by other means, as in the case of any other document, as Section 69 of the Indian Evidence Act states.
In such a case, such a document needs to be proved based on the opinion of others who acquainted with the handwriting or signature of the executant (as provided for in section 45 and 47 of the Indian Evidence Act) or by directly comparing the handwriting or signature in the Will (as provided in Section 73 of the Indian Evidence Act).
Even though expert opinion can be taken to prove a signature, the court itself is sufficiently entitled to make comparison of disputed and admitted signatures. After handwriting experts make a comparison of the disputed writing and the proved writing, the court should use its own eyes to arrive at a conclusion.
To prove the execution of the Will, mere examination of its scribe or proof of his signature is of no much value. It is better for the scribe to sign as an attesting witness rather than its scribe alone. The scribe is not a legal participant in the execution of a Will as the attesting witness is.
If the attesting witness denies or does not recollect execution of the documents its execution needs to be proved by other means, as Section 71 of the Indian Evidence Act states.
In the absence of any suspicious circumstances, the presumption of genuineness of the Will would remain even though the scribe and the witnesses are dead and the Will is not proved by other means.
To prove the genuineness of the Will, the court should consider not only the testimony of witnesses but also the surrounding circumstances brought out in evidence.
Executor must prove the genuineness of the Will
A person executing the Will need to prove its due making, attestation, and a sound state of mind of the testator as per Section 63 of the Indian Succession Act, 1925. He must prove the nature of the document proposed as the Will in a way he could gather. The nature of proof required to prove a Will is not different from those required to prove other documents except the requirement of attestation prescribed under Section 63 of the Indian Succession Act, 1925.
Ambiguous or mutually contradictory clauses in a Will should be interpreted according to the intention of the Testator. The Testator’s intention is paramount in interpreting the Will.
When the evidence brought in is disinterested, satisfactory and sufficient to prove the Testator’s mind and his signature, it is not possible for the court to disfavour the Executor of the Will. If there is suspicion the Executor should explain its circumstances in a convincing manner.
If a Will is a registered one that itself is a circumstance to prove the authenticity and genuineness of the Will. But the mere fact that a Will is registered is not sufficient to dispel all suspicion regarding its genuineness. If the Administrator has taken a prominent part in the execution and has received substantial benefit under the Will that itself is a suspicious circumstance. Such a suspicious circumstance needs to be dispelled by cogent and satisfactory evidence. An unnatural circumstance is a suspicious one.
A Will made by fraud, coercion or undue urgency cannot be a due exercise of free mind of the Testator. Similarly, if the evidence relating to registration of the Will shows that registration was done in such a casual manner, then the registration of the Will would not be of much value to prove its genuineness.
If the registration officer does not read the Will over to the Testator, or does not bring to his attention that he was engaging in the execution of a Will, then the registration of the Will is a suspicious one as that of the Will itself. Such a registration has no value at all.
The Executor must remove any suspicion relating to the Will by cogent and satisfactory evidence if there are any suspicious circumstances surrounding the execution of a Will. The court would look into the inherent probabilities also while examining surrounding circumstances.
No precise equation to prove genuineness
There is no mathematical equation to determine whether a Will is a genuine one or not.
The authenticity of a Will depends on the circumstances surrounding its execution and the quality of the evidence that has been brought before the court in respect of its genuineness.
The Administrator has to prove the due and valid execution of the Will. The administrator should also prove that the Testator was in sound state of mind, he understood the nature and effect of the disposition, and put his signature to the document of his own free Will.
What the Propounder or Executor must prove
The Propounder of the Will must prove that
- The Will was signed by the Testator in the presence of at least two witnesses
- The Testator was in sound and disposing state of mind at the relevant time
- He understood the nature and effect of the disposition – the contents of it
- He put the signature to the Will of his own free will.
In the case of a Will, the Supreme Court says, it would be difficult to expect proof with mathematical precision. Therfore, the test to be applied would be the usual one of the satisfaction of the prudent mind.
Conclusion
Will is a solemn document executed by a person for planned disposition of his property after his death. If the Will is properly executed it would prevent many future clashes and court cases regarding ownership of property.
In the absence of any suspicious circumstances, the presumption of genuineness of the Will would remain undisputed. Even though some infirmities exist they can be wholly neglected.
The real role of an attesting witness is to provide evidence to make the property distribution plan of the testator work as per his wishes. An attesting witness, therefore, is not just a ritualistic signer of a document. His act of signing it is not just a mechanical one. The attesting witness is a key player in putting the plan of action of the testator into reality after the latter’s death.
In constructing the Will, the court must apply arm chair rule for which the court must place itself in the arm chair of the Testator and find out his intention. To gather intention of the Testator of a Will, all the relevant and material contents in the entire document will have to be explored.
A simple model format of Will
A model format of Will prepared and published by the Department of Registration, Government of Kerala is available on their website, along will other model formats for sale, mortgage etc, in word and pdf formats.
Click here to download the model format in English in word format.
Further reading
- Nagulapati Lakshmamma v Mupparaju Subbaiah, 1998 [AIR 1998 SC 2904] The judgment says that the attesting witness must sign the document and cannot delegate the function to another person.
- Jagdish Chand Sharma v Narain Singh Saini [AIR 2015 SC 2149] The witness must see or be knowledgeable of the testator signing the Will.
- Veerattalingam & others v Ramesh & others [AIR 1990 SC 2201] The Will must be construed as a whole and not piecemeal.
- Krishnammal v R. Ekambaram & ors [AIR 1979 SC 1298] Will written in non-legal language must be construed in the legal sense of the term.
- Pentakota Satyanarayana & ors v Pentakota Seetharatnam & ors [AIR 2005 SC 4362] Sub-Registrar’s endorsement that the executants had acknowledged execution before him amounts to attestation
- Janki Narayan Bhoir v Narayan Namdeo Kadam [AIR 2003 SC 761] An attesting whiteness, if he is alive, must be examined so as to prove the Will. If the witness is not alive other means can be explored to prove it.
