2. 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. It is a unilateral document
and takes effect after the death of the person making it.
It can be revoked or altered by the maker of it at any
time he is competent to dispose of his property.
3. Testator Details – Name, age, address details of the person
making the Will
Legal declaration – A Will is a declaration. A Will is by
which a living person (called testator) declares his desires
or intentions. A Will is never an agreement or contract or
settlement. It is for this reason that the beneficiaries of a
Will should not be parties to the Will. The declaration must
be legal. A declaration that is illegal either by way of the
ultimate objective or in some other way will not be
considered as a Will.
4. Intention of testator – A Will is a declaration of
intention of the person making the Will. By
definition, intention relates to the future and is
different from statement of narration of facts as
at present. A Will that only narrates the present
state of affairs and does not carry a clear
exposition of the intention of the testator is not a
Will. Similarly, if a Will made by a wife stating
what her deceased husband always desired
before death is not a Will; since it carries
intentions of the testator’s deceased husband
and not of the testator.
5. With respect to his / her property – A Will can only be
made with respect to the property that the testator owns or
has rights over. The simple rule is that one can only give
what one has. There is no way that one can give away
something that one does not have. The details of the
properties which the testator wants to give to his
beneficiaries under his Will like the description, the
registration number, the date of registration and whether it
is his self acquired property etc. If it is a movable property,
then the details and description of each should be clearly
and individually mentioned. Beneficiary Details – In case of
multiple beneficiaries, the details of each beneficiary like
name, age, address, relationship of the beneficiary with the
Testator.
6. Desires to be carried into effect after his / her death –
The Will must state clearly that the testator desires that it
comes into effect after his / her death. A renunciation during
one’s lifetime does not amount to a Will. If the document
desires to partition property among the testator’s sons while
the testator is still living, the document cannot be called a
Will.
Guardian for Minors – If the Testator wishes to give his
property to any beneficiary who is a minor, then definitely
he should appoint a guardian who will take care of the
minor’s property till the minor attains majority.
7. Executor of the Will – The Testator should appoint an Executor
to his Will. An Executor is a person who shall implement the
Will after the Testator’s death. Signature and Date – The Will
should be clearly dated and signed by the Testator at the place in
the document just below the last sentence in the document.
Exclusions – The Testator cannot give any property that is joint
family property or ancestral property that is common to many
other members too. Such a Will becomes void. 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 after construing
the Will as a whole and not the clauses in isolation.
8. 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.
9. Every person who is of sound mind and is not a minor
can make a will.
Persons who are deaf or dumb or blind can make a will
provided they are able to know what they do by it.
A person who is ordinarily insane may make a will
during an interval in which he is of sound mind.
No person can make a will while he is in such a state of
mind, whether arising from intoxication or from illness
or from any other cause, that he does not know what he
is doing.
10. 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 anytime 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
11. 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 coparcener 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 genuines 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.
12. Conditional Wills: A Will maybe 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 both, 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.
13. 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.
14. Every person, not being a soldier employed in an
expedition or engaged in warfare, or an airman so
employed or engaged, or a marine at sea shall execute
his will accordingly.
He shall sign or fix his mark to the will or it shall be
signed by some other person in his presence and by his
direction
The signature or mark should be so placed that it shall
appear that it was intended thereby to give effect to the
writing as a will
15. The will shall be attested by two or more witnesses, each of
whom has seen the testator sign or affix his mark on the
will or Has seen some other person sign the will, in the
presence and by the direction of the testator or Has received
from the testator a personal acknowledgement of his
signature or mark, or of the signature such other person;
Each of the witnesses shall sign the will in the presence of
the testator, but it shall not be necessary that more than one
witnesses be present at the same time, and no particular
form of attestation is necessary.
Declaration of intention
16. Any movable or immovable property can be disposed of
by a will by its owner.
17. Any person capable of holding property can be devisee
under a will and therefore a minor, lunatic, a
corporation, a Hindu deity or any other juristic person
can be a devisee.
18. The Indian Succession Act imposes restrictions in certain
cases.
1. Transfer to person by particular description, who is not in
existence at testator's death.
2. Transfer to person not in existence at testator's death subject
to prior bequest.
3. Transfer made to create perpetuity.
4. Transfer to a class some of whom may come under above
rules
5. Transfer to take effect on failure of prior Transfer
6. Effect of direction for accumulation
19. A will can be revoked in the following manner
By execution of a subsequent will
By some writing and declaring an intention to revoke
the will
By burning of the will
By tearing of the will
Otherwise destroying the will
When a will is evoked by a subsequent will, the will so
revoked will have no operation
