Law

How to Make Will in India - Learn in Easy Steps

The history of Laws in India can be traced back to ancient times notably from the time of ‘Arthasastra’ written by Kautilya during 400 BC which further evolved through different ‘Smrities’ like Manusmriti written by Manu around 100 AD. These two treatises are considered to be the twin pillars of traditional Indian law. Much later Mohammedan law got introduced in India based on Sharia laws. But Modern Indian Laws as we find today has most of its sources in English Common Laws, save and except the personal laws of the land.

The rules relating to the execution, interpretation and proof of wills and their legal effect are to be found in a special branch of law which is to be found in the Indian Succession Act (XXXIX of 1925). This Act, like some other Acts is primarily based on the English law on the subject, and when there is doubt or the absence of an authoritative pronouncement by the Courts in the country, it is permissible to refer to the English decisions for guidance. “Will” implies a codicil meaning a testament relating to a will which is supplemental to and annexure of a will, and every writing making a voluntary posthumous disposition of property or estate of a person as provided by General Clauses Act, s.3(64), which means a legal declaration of the intention of the Testator, with respect to his property, which he so desires to be carried into effect after his death as provided by s.2(h) of the Indian Succession Act 1925. The concept of a written Will came with the introduction of The Indian Succession Act (XXXIX of 1925) which lays down the rules pertaining to the execution, interpretation and proof of wills. Prior to coming into force of the said Act it was not mandatory for a Hindu, Buddhist, Sikh or a Jain to make a will. According to s. 63 of The Indian Succession Act 1925, it has become compulsory for every testator who other than a soldier being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, to execute a proper will to transfer property rights to the rightful successor/heir abiding by certain rules. The rules are as follows:

A will can be written on any white paper even a demy paper and no stamp paper or court fees is needed to execute a will even a registered one.

Any normal person of sound mind and aged 18 years and above with some property to bequeath legally can execute a will as a testator. The testator must sign or affix mark to, the will, or it must be signed by other person in the presence and direction of the testator, and the said signature and the mark or the signature of the person signing on behalf of the testator, must be placed in such a manner that it shall appear that is was intended thereby to give effect to the writing as a will.

It is further provided that the will has be attested by more than two witnesses, each of whom should have seen the testator's sign or affix her mark to the will or has seen some other person signing the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of her mark or signature or the signature of such an other person, and each of those witnesses must sign the will in the presence of the testator, but it isn't necessary that more than one witness should be present at the same time. No particular form of attestation is necessary.

Section 90 of the Indian evidence Act applies to wills like other documents and the Court of law may draw the presumption under it in deciding whether the will has been properly attested or not.

Section 63 of the Indian Succession Act requires a will to be attested by two or more witnesses each of whom has either seen the testator signor affix his mark to the will or has received a personal acknowledgement of his signature or mark from the testator and that each of the witnesses should sign the will in the presence of the testator although the presence of more than witness at the same time isn't necessary.

When drafting a will the basic aim of the draftsmen should be to express the intention of the testator in a simple, clear and unambiguous language and content. The object and the subject of the will should be precisely described to avoid the need for future enquiry as to the property as to the property which has been dealt with by the will, or as to the identity of the persons who are sought to be benefited by the bequests in the will.

Every will should ordinarily begin with the name and description of the testator, and it should be stated in it that it is his last will. The date on which the will is made should be mentioned either at the commencement or in the end before or after the signatures and each bequest in a will is mentioned in separate paragraphs. Special care should be taken to specify the interest of a female legatee in respect of interest which might be absolute, limited or life interest.

The executor or executors , appointed by the will should also be clearly described and their powers clearly defined. At the end of the will the signature of the testator and at least two witnesses should have to be secured.

In case of a codicil it must also be executed with the same formalities and same in the same manner as a will and it should contain a brief description of the will to which it refers to and it should be clearly mentioned whether it is the first, second, third codicil to the will so on and so forth.

Registration of a will under the Indian Registration Act, 1908 is legally necessary , but, a testator , or after his death , any person claiming as an executor or otherwise under a will may present it for registration.

Definitions

  1. Demy – A special kind of paper which is light green in colour on which legal matters are typed to be filed in the court. All the original copies for cases are submitted in all the courts in India on demy papers. It is normally measuring 16 by 21 inches.
  2. Testator – A person who makes a “Will” to give his property to person(s) or institution(s) after his death.
  3. Draftsmen – A person who writes (drafts) deeds/ agreements of transfer like sale, gift, lease, licence, wills etc either under the guidance of an Advocate or independently.
  4. Legatee - A person or organization who receives a gift of an object or money or other property under the terms of the will of a person who has died ( beneficiary of a Will).
  5. Bequest – To give or pass any valuable to any other person(s) or institution(s) forever by a will.

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