Sir John Salmond, the acknowledged authority on jurisprudence has in a statement which I consider as locus classicus said that "Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representation is in some sort identified by the law with him who he represents. The rights which the dead man can no longer own or exercise in propria persona and the obligations which he can no longer in propria persona fulfil, he owns, exercises and fulfils in the person of a living substitute. To this extent, and in this fiction, it may be said that legal personality of a man survives his natural personality, until his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for".
A will is a very important basic document in the whole conspectus of inheritance. The importance of a will is often undermined or ignored by individuals and they therefore shy away from making a will, probably in the belief that things and situations have the inbuilt ability to resolve themselves.
The consequences of a person dying intestate are many. The first one is that in such a situation, the estate is in a state of flux. Secondly that there could be a danger of some document purporting to be a will being produced, which could lead to a lengthy court battle, ultimately having the effect of siphoning off the estate and or depletion of the estate, into whomsoever's hands it ultimately reaches. Thirdly and most importantly, the person who was to make the will i.e. the prospective testator has lost the legal but voluntary right and to distribute his estate by a will, to whomsoever he chose to, within the bounds of the law and therefore the consequence being that in the case of an intestate, the law takes over and the distribution therefore takes place as per the law applicable to the deceased.
In preparing a will for an individual, the lawyer, or advisor has to keep certain aspects in mind. India is a country where in cases of marriage and succession personal laws have primacy. They are, so to say, intertwined. The lawyer must therefore be mindful of that fact. The reason for this is that if, say a will is to be prepared for a person following a particular religion and governed by a particular personal law, the personal law of the person must be kept in mind while drafting the will. If this is not done, the bequests in the will or part thereof are in danger of being set at naught by legal process. To illustrate, if the will is that of a Hindu, and if such Hindu has an interest in coparcenery property, the will can validly dispose off his interest in the property. This much is evident from a reading of section 30 of the Hindu Succession Act. The rider here being that such person cannot dispose off the whole of the coparcenery property, but only that much over which he or she has a right. By this, it means that a coparcener can deal with his probable share and not a specific property or properties of the coparcenary, for a person cannot dispose off what does not belong to him.
Even a will cannot transgress substantive and procedural requirements of the law , therefore, some basic concepts regarding wills need to be discussed.
A will indicates how and in what proportion and manner, an estate is to be distributed. It tells the executors appointed under the will as to act as per the bequests in the will to carry out the wishes of the testator. Wills fall within the realm of what can be called private voluntary legislation.
Some terms as to Wills would be significant here.
A Will is the legal declaration of the intention of the testator, with respect to his property, which he desires to be carried into effect after his death. In other words, a Will or a Testament means a document made by person whereby he deals with disposition of his property, but such disposition obviously comes into effect upon the death of the testator.
Codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will. A codicil is used to make alterations to the will. An important caveat here. A testator can choose to either execute a codicil or may execute a new will altogether, but must clearly indicate in the new will that the former will or wills executed earlier are cancelled .
Executor is the legal representative for all purposes of a deceased person (testator) and all the property of a testator vests in him or her until the property is divided and distributed amongst the heirs and other persons to whom it has been bequeathed. It is the duty of the testator to deal with the directions in the will and distribute the estate according to the bequests. An executor may or may not be one of the beneficiaries under the will.
Beneficiary or Legatee is a person who stands to inherit property under a Will.
Probate is a copy of the Will, certified under the seal of a competent Court.
Testator is a person making a Will and executing it.
Some essential characteristics of wills may be stated here:
Legal Declaration : The document 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. Legal competency encompasses a person who is not a minor, who is of sound mind and the will must be free from fraud, coercion or undue influence. This also includes the ability of the testator to execute a will, which for obvious reasons can only be limited to disposition of property owned by the testator and property as regards which he or she is competent to dispose off.
Disposition of Property : The declaration should relate to disposition of the property of the person making the Will. If the document does not purport to clearly distribute the testators property in a particular manner, it may not be considered as a will. The recitals as regards disposition of property must therefore be made with unimpeachable clarity.
Death of the Testator : The declaration as regards the disposal of the property must be intended to take effect after his death. One may wonder as to why something as obvious as this ought to be stated. Here, I would like to quote an unusual incident that happened. Someone approached me many years back in 1995, with the object of disposition of property during his lifetime. He said that the prospective purchaser had drafted a document and he wanted me to read it. I read the document, but stopped midway because what I held in my hand was not a document of sale which was to transfer the property to the prospective purchaser, but was a will that mentioned that the property was bequeathed to the purchaser on the testator's death! I had to tell the client that 'if you intend to transfer the property now, an irreversible event must happen, and only then can the property vest in the other person'. My client enquired what event? And I had to inform him that it was the final and irrevocable event of every one's life. Death. The client obviously did not go through with the transaction. This is quoted here just to demonstrate that a will comes into operation on death of the testator. If any legal precedent is required for the above , the decision of the Supreme Court in Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana AIR 2012 SUPREME COURT 206 will suffice where it has been held that immovable property cannot be transferred by a Will amongst other modes also discussed in the judgment. The Supreme Court was obviously stating there that an immediate transfer cannot be contemplated except by a sale deed of immovable property, Obviously , immovable property can validly be dealt with by mentioning it as a bequest in a will, where it is genuinely intended to be bequeathed to the legatee but not otherwise as has been held by the Court.
Revocability : Every Will is revocable during the lifetime of the testator.
Language of a Will : A Will can be written in any language and no legalwords need to be used in a Will, however the words used should be lucid and unambiguous so that the intention of the testator is reflected in the Will.
Stamp Duty : No stamp duty is required to be paid for executing a Will or a codicil. A Will, therefore, need not be made on stamp paper, nor does it require compulsory registration.
Attestation : A Will must be attested by two witnesses who must witness the testator executing the Will. The witnesses should sign in the presence of each other and in the presence of the testator. This is to avoid any controversy as regards execution of the will. The witnesses need not know the contents of the will. Only that what they are attesting to is the testator signing the will in their presence.
Under Parsi and Christian law, a witness cannot be an executor or legatee. However, according to Hindu Law, a witness can be a beneficiary or a legatee. This is because the concept of joint or coparcenary property prevails amongst Hindus. A Muslim is not required to have the Will attested if it is in writing.
Registration : The registration of a document provides evidence that the proper parties had appeared before the Registrar and that the Registrar had attested the same after ascertaining their identity. In India, the registration of Wills is not compulsory even if it relates to immoveable property. The non-registration of a Will does not lead to any inference against the genuineness of a Will. In other words, registration therefore does not give any special sanctity to the Will though registration of the Will by the testator himself evidences the genuineness of the Will.
Whether registered or not, a Will must be proved as duly and validly executed, in case a dispute arises, as required by the Indian Succession Act. Once a Will is registered, it is consigned to the safe custody of the Registrar and therefore cannot be dealt with in any manner ,say, it cannot be tampered with or destroyed. And is cases where the genuineness is sought to be impeached, the will can be called for from the Registrars custody.
Procedure for Registration : A Will is to be registered with the registrar/sub-registrar where a registration fee would have to be paid as per the law of the state. The testator must normally be personally present at the registrar's office along with witnesses at the time of registration.
Revocation and Amendment of Will -A Will can either be revoked, or altered by the testator at any time when he is competent to dispose of his property. A person can revoke, change or alter his Will by executing a new Will, revoking the earlier Will, registering the new Will (if the old Will is registered), destroying the old Will or by making a codicil. There is a difference here. On the marriage of a Parsi or a Christian testator, his/her Will stands revoked, this however will not apply to Hindus, Sikhs, Buddhists or Jains.
Probate and Letters of Administration -A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the estate to the executors of the testator, in order that it may be dealt with. It is the official permission and evidence of an executor's authority. A probate is mandatory when the Will is executed by a Hindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or pertains to immovable property situated in those cities. That is evident from a reading of section 57 of the Succession Act,1925 and as explained by the Supreme Court in Clarence Pais v. Union of India AIR 2001 Supreme Court 1151.
Effect of grant of Probate- A probate granted by a competent court is conclusive evidence of the validity of a Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding to revoke the probate. However, it only establishes the legal character of the executor and in no way decides the title or even the existence of the property devised. The grant of the probate decides only the genuineness of the Will and the executors right to represent the estate.It is conclusive evidence of the testamentary capacity of the person who made the Will and as to the genuineness of the Will and appointment of the executors. as to the genuineness of the Will and appointment of the executors.
It is well settled law that the functions of a probate Court are to see that the Will executed by the testator was actually executed by him in a sound state of mind without coercion or undue inference and the same was duly attested. The Court cannot , therefore, determine whether testator had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his Will. The probate Court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the Will were joint ancestral properties or acquired properties of the testator. A suit is therefore maintainable challenging the will even though probate has been granted, as was held in Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon AIR 2008 Supreme Court 306.
When a Will is challenged by any person , the onus of proving the Will or onus probandi is on the propounder. The propounder has to prove the legality of the execution and genuineness of the Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court as was held in K. Laxmanan v. Thekkayil Padmini , AIR 2009 SUPREME COURT 951.
What is the situation that emerges when a will is sought to be challenged and upon what grounds can it be challenged?
Where, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the person seeking to impeach the will. In a case where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator, unless evidence proves that it is genuine or the person impeaching it's genuineness fails to prove so. Though the following is not an inclusive list of such suspicious circumstances or is not exhaustive, as other circumstances could be present, the following are some circumstances that may prove the Will not being genuine.
Suspicious circumstances like the following may be found to be surrounded in the execution of the Will :
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
(v) The propounder takes a prominent part in the execution of the Will.
(vi) The testator used to, sign blank papers.
(vii) The Will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.
The above are all matters of evidence.
The circumstances above have been enumerated by the Supreme Court in Bharpur Singh v. Shamsher Singh AIR 2009 Supreme Court 1766 .
What therefore happens if a will is held to be non-genuine. The answer is simple. The law of succession applicable to the testator takes over and the estate is then administered in accordance with the applicable law.
Some Practical aspects about Will's- What is to be taken care of while drafting a will. Obviously the properties both movable and immovable of the testator are to be detailed. Their disposition is to be directed. But the more practical aspects are also equally important. If the will is to be registered that a copy will be available with the registrar therefore taking care of it's probable authenticity. But if it is not registered, the original or a copy must be given to a trusted person say the testators lawyer or his immediate family member or members for safe keeping. This will depend upon the testator as per his wishes. Also, the family members must be made aware of the location of documents of immovable as well as movable properties including insurance policies. which can help if a person is incapacitated due to a medical situation or otherwise is unable to manage his or her affairs. This assumes significance as even today in India the concept of what is popularly known as a Living Will is not very much in vogue and is yet to receive legal sanction qua properties in case of the testator being incapacitated. But the Supreme Court has in March 2018 in the ' Common Cause' judgment ,recognised that a person in a sound state of mind can make a Living Will qua his or her desires as regards the right to life and to medical treatment or otherwise only.
These then , are some aspects on the subject of Wills . I conclude this by reiterating the immortal classic words of Sir John Salmond quoted at the beginning , where all things being appropriate and as per the law, the estate of the deceased can pass on to his heirs, successors and legatees.
(Author is a Senior Advocate at Gujrath HC And Revising author Mulla's Hiindu Law & Justice S T Desai on The Law of Partnership)