Q.26 What are the points to be borne in mind before proceeding to make an unprivileged Will ? Ans. Before proceeding to make a Will, the following points have to be borne in mind:-a) Every person whether male or female and who is of age of majority and capable of making a Will as per Section 59 of the Indian Succession Act, 1925, can make a Will.b) A Will...
Ans. Before proceeding to make a Will, the following points have to be borne in mind:-
a) Every person whether male or female and who is of age of majority and capable of making a Will as per Section 59 of the Indian Succession Act, 1925, can make a Will.
b) A Will should be in writing. Of course, a Privileged Will, by its very nature, need not be in writing. Similarly, a Will by a Musalman can be oral. But it is safer to make a written Will.
c) It is desirable to ascertain the name, description, identity and geographical location of the movable and immovable properties owned by the testator.
d) The details of the specific properties, if any, which the testator desires to dispose of to specific persons, if any, otherwise than by the proposed Will, may be ascertained.
e) The name, description, identity and geographical location of the specific properties and the specific persons to whom the testator desires to bequeath his assets and the relationship, if any, of such persons with the testator, may also be ascertained.
f) If the immovable properties of the testator are in one country and the testator is domiciled in another country where his movables and some immovables are to be found, it is advisable that he executes two separate Wills one relating to his properties in the country of his domicile and another relating to his properties situated abroad.
g) The personal law by which the testator is governed may be ascertained.
h) The language of the Will can be the language usually spoken and understood by the testator.
i) The Will can be drawn on any ordinary paper.
j) No stamp duty is payable in respect of a Will.
k) Execution of the Will and attestation of execution.
There should be a declaration of the intention of the testator in the document as indicated by Section 2 (h) read with Section 59 of the Indian Succession Act, 1925.
The relevant legal provision concerning the execution and attestation of a Will is to be obtained in Section 63 of the Indian Succession Act, 1925 which reads as follows:-
“63: Execution of unprivileged Wills Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
- The testator shall sign or shall affix 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 of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
- The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to 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 the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary”.
Therefore, from and after 01-01-1927 all persons except those governed by the Mohammedan Law i.e. Muslims, Khojas and Memons, and exempted persons must observe the rules contained in Section 63 of the Indian Succession Act, 1925 in the matter of execution and attestation of a Will.
(ii) The signature or mark of the testator or the signature of the person who has signed on the direction of the testator, should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will.
(iii) The Will has to be attested by two or more witnesses each of whom
a)must either see the testator sign or affix his mark to the Will or must see the other person sign the Will in the presence of and under the directions of the testator, or
(iv) Each of the said attesting witnesses should sign the Will with the intention to attest.
(v) The attesting witnesses should sign the instrument in the presence of the testator.
(l) Since a Will is a document required by law to be attested, it has to be proved in Court by examining at least one attesting witness as insisted by the main part of Section 68 of the Indian Evidence Act, 1872. The proviso to the said Section does not apply in the case of a Will. If no attesting witness can be found or is alive, then Section 69 of the Evidence Act is to be resorted to. If the attesting witness either denies or does not recollect the execution of the Will, then the execution must be proved by other evidence as indicated by Section 71 of the Evidence Act. Such other evidence can include the opinion of any person acquainted with the handwriting or signature of the witness falling under Section 47 of the Evidence Act or the opinion of a handwriting expert on a comparison of the questioned signature and the admitted signature and falling under Section 45 of the Evidence Act.
Q.27 Should an unprivileged Will be in writing ?
Ans. Section 63 of the Indian Succession Act, 1925 indicates that every unprivileged Will has to be in writing. But, a “Privileged Will” can be by word of mouth by a soldier, airman or a mariner declaring his intention before two witnesses present at the same time. (Vide Section 66 (2) (g) of the Indian Succession Act, 1922.)
Q. 28 Is there any distinction between the “mode of proof” of a “Will” and “any other document” required by law to be attested ?
Ans. Yes. An important distinction in the matter of mode of proof of a Will and other documents required by law to be attested, should be borne in mind. As per Section 68 of the Indian Evidence Act every compulsorily attestable document including a Will can be used in evidence only if one attesting witness at least has been called for the purpose of proving their execution if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. But the proviso to Section 68 contains a relaxation to the above rule in the case of all compulsorily attestable documents excluding a Will. If such a compulsorily attestable document (other than a Will) has been registered as per the provisions of the Registration Act, 1908, then the main part of Section 68 need not be complied with for using the document in evidence. But even here, if the execution by the person by whom such compulsorily attestable document purports to have been executed, is specifically denied, then such document can be used in evidence only after complying with the main part of Section 68. In the case of a Will, there is, however, no such relaxation at all. A Will which is also a compulsorily attestable document, can be used in evidence only after complying with the procedure laid down in the main part of Section 68 of the Evidence Act.
The degree of circumspection expected of a Judge has been succinctly stated by Lord Du Paroq as follows :-
Where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an abdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth'. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in the such cases the judicial mind must always be open though vigilant, cautious and circumspect. (Vide Harmes v. Hinkson AIR 1946 PC 156 – Lord Du Parcq - J).
Q.29 What are the requirements to be established for proving due execution and attestation of a Will as required by Section 63 of the Indian Succession Act ?
Ans. We will now examine Section 63 of the Indian Succession Act, 1925 after bisecting the Section into its component parts for a proper comprehension of the legal principles involved.
Every testator shall execute his Will according to the following rules –
Ans. No. Execution of a Will does not merely mean the signing of it by the testator/ testatrix or putting his/ her thump impression or mark on the document, but it means all the formalities required and laid down by Section 63 of the Indian Succession Act, 1925. (Vide Vishnu Ramkrishna Wani v. Nathu Vittal Wani AIR 1949 Bombay 266 - M. C. Chagla - CJ and P. B. Gajendragadkar – J). The testator has to put his signature or mark as contemplated by Section 63 (a) of the Act only after the contents of the writing containing the declaration of his intention, have been scribed. This is because it is not possible to authenticate the declaration before it has actually been reduced to writing. Something which is non-existent cannot obviously be authenticated. (Vide Leela Karwal v. Col. J. D. Karwal AIR 1986 Allahabad 220 - N Ojha, R Shukla - J; Karri Nookaraju v. Putra Venkatarao AIR 1974 A.P. 13 – S. Rao - J; Anath Nath Das v. Bijali Bala Mondal AIR 1982 Cal. 236 – C. Mookerjee - J).
The signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will. (Vide Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh (2009) 4 SCC 780 = 2009 KHC 4563 (SC) – 3 Judges – Dr. Arijit Pasayat, V. S. Sirpurkar, Asok Kumar Ganguly - JJ).
The propounded Will was not accepted for the reason that the signature of the testator on the Will was found different in shape and characters. (Vide Smitha Shajan v. Sreedevi (2020) KHC 3372 = AIR 2020 NOC 456 (Kerala) – A. M. Shaffique, T. V. Anil Kumar - JJ; In Muthulakshmi v. Thangaraj 2020 KHC 3335 = AIR 2020 NOC 417 (Madras) – P. T. Asha – J, the Will was not accepted inter alia due to discrepancy in the execution.)
NOTE BY VRK: A perusal of Section 63 of the Indian Succession Act, 1925, will show that in the case of an unprivileged Will, “execution” includes “attestation” and it is unnecessary to refer to Section 3 of the Transfer of Property Act, 1882 to comprehend the meaning of “attestation” as has been unnecessarily attempted in M. L. Abdul Jabbar Sahib v. M. V. Venkada Sastri & sons (1969) 1 SCC 573 - 3 Judges – S. M. Sikri, R. S. Bachawat, K. S. Hegde – JJ & Babu Singh v. Ram Sahai @ Ram Singh (2008) 14 SCC 754 = AIR 2008 SC 2485 – S. B. Sinha, V. S. Sirpurkar – JJ.)