STUDENT NAME: - DASHANG SAMEER DOSHI
ROLL NUMBER AND DIVISION: - D-190
TOPIC: - RULES FOR CONSTRUCTION OF WILLS
SUBJECT: - FAMILY LAW - I
COLLEGE NAME: - JITENDRA CHAUHAN COLLEGE OF LAW
FACULTY TO WHOM THE PROJECT IS SUBMITTED: - PROF. NAVANITHA
WARRIER & PROF. SUSHMA MHASKE
Page 1 of 15
ACKNOWLEDGEMENT
I would like to take this opportunity to express my gratitude to one and all without whom it
would not be possible to complete the project. Firstly, I would like to express my gratitude
towards Prof. Navanitha Warrier & Prof. Sushma Mhaske for guiding me throughout the
project. I also feel thankful and express my gratitude towards our Principal Dr. Priya J. Shah
for giving me this opportunity. All the respected teachers provided me with their vital support
and guidance because of which I could make this project. This project helped me in finding
my capabilities and also enhanced my research skills.
I would also like to express my sincere thanks to my family; it would not have been possible
to finish this project without their support and coordination. Lastly, I would like to thank my
friends who have been upfront whenever I needed help from them for making this project
within the stipulated time frame.
Dashang Sameer Doshi
FYLLB D - 190
Page 2 of 15
Table of Contents
SR. NO TOPIC PAGE
NUMBER
1. Introduction 4
2. Definition & Meaning of Will 5
3. Important terms relating to Will 6
4. Characteristics of Will 7
5. Types or Kinds of Will 8
6. Person Capable of Making a Will 9
7. Rules for Construction & Interpretation of the Will 10
8. Registration of Will 12
9. Conclusion 14
10. Bibliography 15
Page 3 of 15
INTRODUCTION
Laws of Succession relate to legal principles of distribution of assets of a deceased
individual. These include the order in which one person in preference of any or one person
after another or any one person in particular share with any other person succeeds to the
property/estate of the deceased person. Corporate persons having perpetual existence are not
covered in this and have separate laws relating to Winding up, Reorganization and Closure.
The laws of succession can broadly be divided in two parts, firstly, where deceased has left
behind a valid and enforceable 'Will'; and secondly, where a person died without leaving
behind such 'Will'.1
Will is considered to be a very important document as it has its own relevance as a document.
Will in general meaning is considered a document in writing showing the desire of the
deceased person regarding the distribution of his property whether movable or immovable.
The registration of will is not compulsory but generally it is preferred to do the registrartion.
Suppose in case a person who died has not executed the will or say has not registered the
same then there is the court which would decide the distribution pattern.
The origin and growth of Will amongst the Hindus is unknown. However Wills were well
known to the Mohammedans and contact with them during the Mohammedan rule, and later
on with the European countries, was probably responsible for the practice of substituting
informal written or oral testamentary instruments with formal testamentary instruments. The
Indian Succession Act, 1925, consolidating the laws of intestate (with certain exceptions) and
testamentary succession supersedes the earlier Acts, and is applicable to all the Wills and
codicils of Hindus, Buddhists, Sikhs and Jainas throughout India. The Indian Succession Act,
1925, does not govern Mohammedans and they can dispose their property according to
Muslim Law.2
DEFINITION & MEANING OF WILL
1
Shekhar Agrawal, Succession Laws In India in a Nutshell, (July, 21, 2021, 10:00 PM),
https://www.mondaq.com/india/wills-intestacy-estate-planning/957940/succession-laws-in-india-in-a-nutshell
2
Sahil Shah, An Overview of Wills under Hindu Law, (July, 21, 2021, 10:10 PM),
http://www.legalserviceindia.com/articles/will_hindu.htm
Page 4 of 15
As per Section 2(h) of Indian Succession Act, 1925 provides that ‘Will’ means the legal
declaration of the intention of a person with respect to his property, which he desires to to be
carried into effect after his death.3 Will has been defined in Corpus Juris Secundum as A
‘Will’ is the legal declaration of a man’s intention, which he wills to be performed after his
death, or an instrument by which a person makes a disposition of his property to take effect
after his death.
A last will and testament is a legal document that communicates a person’s final wishes
pertaining to possessions and dependents. A person’s last will and testament outlines what to
do with possessions, whether he is leaving them to another person or group or donating them
to charity, and what happens to other things for which he is responsible, such as custody of
dependents and accounts and interests management.
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian
Succession Act, 1925. However, Mohammedan are not governed by the Indian
Succession Act, 1925 and they can dispose their property according to Muslim Law.4
Any such person, who is of sound mind, and who is not a minor, can execute his or her Will.
Here, it is to be noted that, such person may be very sick or ill, i.e. of unsound health, but, at
the moment of execution of Will, he must be of sound mind. It means that, he must have
capacity to realize or understand, as to what are his properties, who are near and dear to him,
in whose favour it would be better to dispose of property, etc. In short, any such person,
making a Will, must be able to know the nature of his acts and its consequences. And
therefore, it is safe practice that, the instrument of Will has to be appended with the medical
certificate of such doctor, who, after actual examination of such person (making a Will),
certified that, such person is in good and sound state of mind, although he may not in
physically sound condition as the case may be.5
IMPORTANT TERMS RELATING TO WILL
3
Indian Succession Act, 1925.
4
Abhishek Singh, Concept of Will in India, (July 21, 2021, 10:20 PM),
https://taxguru.in/corporate-law/concept-will-india.html
5
Adv. Hitendra Shah, Law and Practice relating to Wills, (July 21, 2021, 10:30 PM),
http://www.legalservicesindia.com/law/article/1335/8/Law-and-Practice-relating-to-Wills
Page 5 of 15
1. Testator: A person who makes the Will. He is the person, whose property is to be
disposed of, after his death, in accordance with the directions specified under the Will.
2. Codicil: 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. The purpose of codicil is
to make some small changes in the Will, which has already been executed. If the testator
wants to change the names of the executors by adding some other names, or wants to
change certain bequests by adding to the names of the legatees or subtracting some of
them, a Codicil in addition to the Will can be made to do so. The codicil must be reduced
to writing and has to be signed by the testator and attested by two witnesses. It is also the
duty of the court to arrive at the intention of the testator by reading the Will and all the
codicils.6
3. Executor: It means the person to whom the execution of the last will of a deceased
person is, by the testator’s appointment. In short he will be the person who will execute
the Will.7
4. Probate: It means the copy of a will certified under the seal of a court of competant
jurisdiction with a grant of administration of the estate of the testator.8
5. Attestation of Will: Attestation of the Will is a mandatory (i.e. compulsory) formality of
an ordinary (i.e. regular)Will, which is also called, in legal terms, as an unprivileged Will.
The execution of a Will includes its attestation by witnesses, and so, if there is no
attestation, the Will is not validly executed. It is absolutely necessary that, the attesting
witness should sign the instrument (i.e. document) of Will.9
6. Letter of Administration: Letter of Administration is a certificate granted by the
competent court to an administrator where there exists a Will authorizing him to
administer the estate of the deceased in accordance with the Will. If the Will does not
name any executor, an application can be filed in the court for grant of Letter of
Administration for the property.10
6
Sahil Shah, supra note 2.
7
Supra Note 3.
8
Ibid.
9
Adv. Hitendra Shah, supra note 5.
10
Sahil Shah, supra note 2.
Page 6 of 15
CHARACTERISTICS OF WILL11
It is very important that the testator’s intention is met. 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 as such
restrictions on number of times that it can be changed. Also it can be withdrawn by the
person who is making the Will anytime. The disposition of property is carried out in
accordance with the law and it is upon the testator to decide the manner in which his property
is to be bequeathed. It is also upon the testator who should be appointed as the Executor of
the Will. Also if the testator executes a subsequent will, his previous Will automatically
stands cancelled. The Will is to be Executed only after the testator’s death.
A will can be rejected if it is obtained with undue influence, coercion or fraud. The Testator
can bequeath the property where they have absolute ownership. The ownership can be in
immovable property like flats, any land etc. and movable property can be in the form of
investment made in stocks, mutual funds, etc. It is also upon the testator to bequeath the
jewellery or utensils. The testator can even transfer the property in the form of trust, a
reigious institution or for any educational purpose, if in case he does not want to bequeath the
property to his natural heirs. In case if the testator is transferring the property to any trust or
religious institutions the name of the trustees should also be mentioned to avoid any
discrepancy.
The documents purporting to be a Will or a testament must be legal, i.e in confirmity with the
law and it must be executed by the person legally competant to make it. 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. The Will
has to be attested by two or more witnesses, each of who have seen the testator signing the
will.
11
Mitali Shahane, How and When to make a Last Will and Testament ?, (July 21, 2021, 10:45 PM),
https://blog.ipleaders.in/make-last-will-testament/
Page 7 of 15
TYPES OR KIND OF WILLS
There are different types or kind of Wills which can be stated as under:
1. Conditional Wills : A Will can be expressed to take effect only in the event of satisfying
certain conditions or can be contingent upon other factors. Such a Will, which is valid
only in the event of the happening of some contingency or condition, and if the
contingency does not happen or the condition fails, is called a conditional or contingent
Will.12 Rajeshwar v. Sukhdeo13 dealt with the operation of the Will wherein it was
postponed till the death of the Testator’s wife’s death. 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.
2. 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.14
3. 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.15
4. Privileged Will : Under Chapter VI, Section 65 of the Indian Succession Act, 1925
defines a Privileged Will as Any soldier being employed in an expedition or engaged in
actual warfare,[or an airman so employed or engaged,] or any mariner being at sea, may,
if he has completed the age of eighteen years, dispose of his property by a will made in
the manner provided in section 66. Such wills are called privileged wills.16
12
Types of Will in India, (July, 21, 2021, 11:27 PM), https://www.indiafilings.com/learn/types-wills-india/
13
LAWS(PVC)-1947-3-77.
14
Mitali Shahane, supra note 11.
15
Sahil Shah, supra note 2.
16
Indian Succession Act, 1925.
Page 8 of 15
PERSONS CAPABLE OF MAKING A WILL17
Every person can make a will provided that person should be:
1. Of sound mind
2. Not a minor
3. A married woman suffers from no disability.
4. A person who is deaf, dumb or blind can also make a will if capable of understanding or
knowing as to what by it.
5. A person who is insane can make a will during the period where there is no attack of
insanity.
However, Section 60[3] carves out an exception to the general rule and a father is allowed to
make a will even if he (father) is a minor. The purpose of will is also in that case limited to
the extent of appointing a guardian for his minor child.
In short, the testator’s age, disease and mental weakness are all important considerations
while considering the testamentary capacity of the Testator.
What is required for the validity of a will is that the testator should have been able to
comprehend the nature and effect of the disposition at the time of making the will. The
testamentary capacity has to be judged not by an absolute standard but as relative to a
particular testamentary act.
17
Mitali Shahane, Supra note 11.
Page 9 of 15
RULES FOR CONSTRUCTION AND INTERPRETATION OF THE WILL18
Section 97, 98, 99, 100 & 101 of the Hindu Succession Act, 1925 deals with the Construction
and Interpretation of the words used in a Will.
The general rule which is adopted by the Courts is to go by the manifest intention of the
testator. This principle is found in a judgement delivered by the apex court in Nathu v. Debi
Singh.19The Will should be construed by a court placing itself on the armchair of the testator.
The endeavour of the court should be to give effect to his intention. The intention of the
testator can be culled out not only upon reading the will in its entirety, but also the
background facts and circumstances of the case. (Shyamal Kanti Guha & Ors. v. Meena
Bose20)
General principles for construction of a Will have been reiterated by supreme court in a large
number of cases. It shall be sufficient to refer to a three Judge Bench judgment of this court
in Navneet Lal alias Rangi v. Gokul & Others 21. In this case, the Supreme Court held that
the court should consider the surrounding circumstances, the position of the testator, his
family relationships, and the probability that he would use words in a particular sense.
However it also held that these factors are merely an aid in ascertaining the intention of the
testator. The Court cannot speculate what the testator might have intended to write. The Court
can only interpret in accordance with the express or implied intention of the testator
expressed in the Will. It cannot recreate or make a Will for the testator.After referring to
judgment of Privy Council and several judgments of this court, certain principles were
enumerated in paragraph 8 of the judgment, which is to the following effect:
(1) In construing a document whether in English or in vernacular the fundamental rule is to
ascertain the intention from the words used; the surrounding circumstances are to be
considered; but that is only for the purpose of finding out the intended meaning of the words
which have actually been employed. {Ram Gopal v. Nand Lal22}
18
General Principles for Construction of a will, (July 22, 2021, 10:38 AM),
https://advocatetanmoy.com/2018/11/17/general-principles-for-construction-of-a-will/
19
AIR 1966 Punj 226.
20
2008 8 SCC 115.
21
1976 (1) SCC 630.
22
1950 SCR 766.
Page 10 of 15
(2) In construing the language of the will the court is entitled to put itself into the testator’s
armchair {Venkata Narasimha v. Parthasarathy23} and is bound to bear in mind also other
matters than merely the words used. It must consider the surrounding circumstances, the
position of the testator, his family relationship, the probability that he would use words in a
particular sense. But all this is solely as an aid to arriving at a right construction of the will,
and to ascertain the meaning of its language when used by that particular testator in that
document. {Venkata Narasimha’s case and Gnanambal Ammal v. T. Raju Ayyar24}
(3) The true intention of the testator has to be gathered not by attaching importance to
isolated expressions but by reading the will as a whole with all its provisions and ignoring
none of them as redundant or contradictory {Raj Bajrang Bahadur Singh v. Thakurain
Bakhtraj Kuer25}
(4) The court must accept, if possible, such construction as would give to every expression
some effect rather than that which would render any of the expressions inoperative. The court
will look at the circumstances under which the testator makes his will, such as the state of his
property, of his family and the like. Where apparently conflicting dispositions can be
reconciled by giving full effect to every word used in a document, such a construction should
be accepted instead of a construction which would have the effect of cutting down the clear
meaning of the words used by the testator. Further, where one of the two reasonable
constructions would lead to intestacy that should be discarded in favour of a construction
which does not create any such hiatus. {Pearey Lal v. Rameshwar Das26}.
(5) It is one of the cardinal principles of construction of wills that to the extent that it is
legally possible effect should be given to every disposition contained in the will unless the
law prevents effect being given to it. Of course, if there are two repugnant provisions
conferring successive interests, if the first interest created is valid the subsequent interest
cannot take effect but a Court of construction will proceed to the farthest extent to avoid
repugnancy, so that effect could be given as far as possible to every testamentary intention
contained in the will. {Ramachandra Shenoy v. Mrs Hilda Brite}
23
(1913) 41 Ind App 51.
24
1950 SCR 949, 955.
25
1953 SCR 232, 240.
26
1963 Supp. 2 SCR 834, 839, 842.
Page 11 of 15
REGISTRATION OF WILL27
In India, registration of documents is covered by Registration Act, 1908. Section 18 of
Registration Act provides a list of documents for which registration is optional. Wills are
covered under (e) of the said section 18.
Registration of Wills is not compulsory and depends on the choice of the testator. Typically,
the testator will have to visit the office of the sub-registrar of the area for registration of his /
her Will. The personal appearance of the testator before a government official with the
original Will adds to the reliability and trustworthiness of the Will. A registered Will
provides strong legal evidence against challenges about the mental capacity of the testator to
make a Will (whether due to illness or due to influence of alcohol or medication etc.). It is
presumed that there is little chance that a person in state of mental incapacity will have the
ability to first make a Will and then go through the trouble of registering it.
Registration reduces the chances that the Will may be challenged as being a forgery.
However, other challenges to a Will as being signed under undue influence etc. are still open.
The other advantage of registration is that the Will is in safekeeping at the office of the
Registrar. The Will may only be withdrawn from the Registrar by the testator or his agent
during his lifetime. On the testator’s death, the Registrar may permit an applicant to take a
copy of the Will. However, the original Will is still kept in the deposit with the Registrar.
This ensures that the Will is not tampered with subsequent to the testator’s death.
In case of a registered Will, all subsequent alterations or modifications (Codicils) should also
be registered. Any non-registered alterations or modifications or explanations or deletions are
not accepted by courts.
However, the testator may make a fresh Will revoking the registered Will and declaring the
provisions of the fresh Will as his final desires. Even if the fresh Will is unregistered, (if it is
of a date later than the registered Will), the fresh Will shall prevail over the registered Will.
Though the registration of a Will is not compulsory, it can be registered with the sub-
registrar. If, at any time, the testator wishes to withdraw the Will, he can do so. A Will also
can be sealed and kept in safe custody.
On the death of the testator, an executor of the Will or a heir of the deceased testator can
apply for probate. The court will ask the other heirs of the deceased if they have any
27
Abhishek Singh, Supra Note 4.
Page 12 of 15
objections to the Will.If there are no objections, the court will grant probate. A probate is a
copy of a Will, certified by the court, and is conclusive evidence that the Will is genuine.
In essence, registration does strengthen the Will in some respects even though it does not
make it cast in stone. Registration is advised if there is a possibility that the Will be
challenged by a natural heir (who is denied in the Will what he would have inherited if the
testator had died intestate). Registration is also advised if one or more of the beneficiaries are
likely to be dissatisfied with the Will.
Most importantly, it should be remembered that the Registrar or sub-registrar does not attest
the Will even though he / she may sign the Will in the presence of the testator. If the Will
suffers from any defects or lacunae due to wrong or incomplete or absence of attestation,
registration will not make the Will valid in any way.
CONCLUSION
Page 13 of 15
Thus, from the above discussion it can be concluded that ‘Will’ is one of the most important
document which is to be made by anyone looking at current changing times and plethora of
problems which may arise. So in short we can say, making a last will and testament has
become fundamental in one’s life. Thus, the task of distribution of property is made easy
once a will has been formulated. Certain rules which we discussed should be kept in mind
and accordingly the interpretation of the same should be done.
BIBLIOGRAPHY
Page 14 of 15
1. Indian Succession Act, 1925.
2. Shekhar Agrawal, Succession Laws In India in a Nutshell,,
https://www.mondaq.com/india/wills-intestacy-estate-planning/957940/succession-laws-
in-india-in-a-nutshell
3. Sahil Shah, An Overview of Wills under Hindu Law,
http://www.legalserviceindia.com/articles/will_hindu.htm
4. Abhishek Singh, Concept of Will in India, https://taxguru.in/corporate-law/concept-will-
india.html
5. Adv. Hitendra Shah, Law and Practice relating to Wills,
http://www.legalservicesindia.com/law/article/1335/8/Law-and-Practice-relating-to-Wills
6. Mitali Shahane, How and When to make a Last Will and Testament ?,
https://blog.ipleaders.in/make-last-will-testament/
7. Types of Will in India, https://www.indiafilings.com/learn/types-wills-india/
8. LAWS(PVC)-1947-3-77.
9. Nathu v. Debi Singh, AIR 1966 Punj 226
10. Shyamal Kanti Guha & Ors. v. Meena Bose, 2008 8 SCC 115.
11. Navneet Lal alias Rangi v. Gokul & Others, 1976 (1) SCC 630.
12. Ram Gopal v. Nand Lal, 1950 SCR 766..
13. Venkata Narasimha v. Parthasarathy, (1913) 41 Ind App 51.
14. Gnanambal Ammal v. T. Raju Ayyar, 1950 SCR 949, 955.
15. Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer, 1953 SCR 232, 240.
16. Pearey Lal v. Rameshwar Das, 1963 Supp. 2 SCR 834, 839, 842.
Page 15 of 15
