“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-VI]

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 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. (i) Thus the testator having a sound disposing state of mind free from all extraneous influences, should execute the Will by either signing the same or affixing his mark to the Will. Instead of the testator himself signing or affixing his mark he can direct some other person to sign the Will in his presence.(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 b) must receive from the testator, a personal acknowledgment of his signature or mark or of the signature of the other person. (Where the case falls under this clause it is not necessary that the witness should see the testator sign or affix his mark or the other person putting his signature on the direction of the testator as aforesaid. (iv) Each of the said attesting witnesses should sign the Will with the intention to attest.(v) The attesting witnesses should ...

“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-VI]

Justice V Ramkumar

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