Wills And Probate under Indian Succession Act, 1925

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Wills And Probate under Indian Succession Act, 1925

May 15, 2023

I. Introduction:

Wills and Probate in India are regulated by various personal laws. But the concept of will and probate are defined under the India Succession Act, 1925 (“Act”).

Probate has been defined as a certified copy under the seal of a court of competent jurisdiction, and this seal has the effect of granting administration to the estate of the testator[1].

Whereas, Will (“Will”) is the intention of a testator in the form of a legal declaration, concerning their property, desiring to be put into effect after their death.[2] The Supreme Court in Kavita Kanwar vs. Pamela Mehta and Ors.[3] defined “Will as a testamentary document that comes into operation after the death of the testator”.

Testamentary succession is put into effect vide a Will or a codicil under the Act. Testamentary document has been discussed in the case of Pavitri Devi and Ors. vs. Darbari Singh and Ors.,[4] wherein the Hon’ble Apex Court relied on the definition of testamentary instrument/disposition in the following manner:

“In the Law Lexicon by P. Ramanatha Aiyar, reprint edition 1987 at P. 1271 testamentary instrument was defined to mean a “testamentary instrument” is one which declares the present will of the maker as to the disposal of his property after death, without attempting to declare or create any rights therein prior to such event. Black’s Law Dictionary [6th Ed. 1991] defines “testamentary disposition” at page 1475 thus – the passing of property to another upon the death of the owner. A disposition of property by way of a gift, Will or deed which is not to take effect unless the grantor dies or until that event.”

There are primarily two types of Wills defined under the Act.

1. Privileged Will: Any soldier or airman, or mariner, of 18 years of age can dispose of his property by a Will. Such a Will can be made in writing or by word of mouth.[5] 

2. Unprivileged Will: Every testator, who is not a soldier, airman, or mariner can dispose of his property by way of Will. However, such a Will has to be made in writing.[6]

Further, this article will help in understanding the concept of wills and probate with regard to their execution, revocation, revival, and capability to execute under the Indian Succession Act of 1925.

II. Wills under Indian Succession Act, 1925

A. Applicability:

Wills are governed by Part IV of the Act and Probate is governed by Part IX of the Act.

Section 57 of the Act[7] provides that the Act applies to a certain class of Wills(as described in detail hereunder) made by Hindi Buddhist, Sikh, or Jaina but does not apply to testamentary succession to the property of any Muhammadan, Hindu, Buddhist, Sikh or Jaina(otherwise as provided under Section 57).[8] This is because succession under different religious sects is governed by the particular law for that religion.

However, it is to be specifically understood that,

  • will that has been made within the territory governed by the Lieutenant Governor of Bengal or within local limits of the High Courts of Madras and Bombay;
  • will that has been made outside India but relates to a property situated in the territories as mentioned under Section 57(i);
  • will that has been made by Hindu, Buddhist, Sikh, or Jaina on or after 1/01/1927,

fall under the ambit of Part IV of the Act. The same has been reiterated by the Supreme Court in the case of Kanta Yadav vs. Om Prakash Yadav and Ors. [9]

Further, not every Will is valid and enforceable, because “a Will is rendered void in cases of it being polluted by the sin of fraud and other defects.”[10]

B. Capability to make wills:

A minor cannot dispose of any property by way of Will, but a person of sound mind can dispose of his property by way of Will.[11]  The Indian Succession Act confers the right to dispose of the property by Will upon all persons irrespective of caste, creed, or religion.[12]

The Act provides for certain explanations to determine persons capable of making Wills. Firstly, a married woman during her life by her act may dispose of any property by making a Will. Further, persons who are deaf or dumb or blind, are incapacitated from making a Will, unless they are aware of the impact the Will would have if enforced, and a person who is ordinarily insane can make a Will during intervals when he is of sound mind. Lastly, in a situation where the person is in a state of mind, maybe due to intoxication or illness or any other cause, where they aren’t aware of the repercussions of making a Will, is considered to be a person incapable of making a Will. [13]

C. Execution of privileged and unprivileged Wills:

a. Unprivileged Wills:

Chapter 3 of Part 6 of the Act provides for the execution of unprivileged Wills. As a testator, he/ she shall sign or affix their mark on the Will or some other person shall affix their mark under the direction of the testator. Further, the effect of the mark or sign shall be such that it puts the Will in writing.[14] Further, in the case of V. Kalyanaswamy (D) by L.Rs. and Ors. vs. L. Bakthavatsalam (D) by L.Rs. and Ors., the Apex Court held that “the Testator must execute the document and such execution must be attested by at least two witnesses.”[15]

The testator via Will or codicil can refer to any other document in the Will or codicil, and such other documents form an integral part of the Will. Codicil has been defined as an instrument, made in relation to the Will. The primary objective behind the creation of a Will is to explain, alter, add, or modify any dispositions made in the Will. A codicil although executed at a different place in time separately from the Will, forms a part of the Will.[16]

b. Privileged Wills:

There are certain instances under which a privileged Will can be executed. They can be executed by word of mouth or might be reduced in writing.[17] Below given are situations where a privileged Will is deemed to be executed.

  • In a situation where the privileged Will is written wholly by the testator, there is no requirement for signature and attestation of the Will.
  • It need not be attested, if it is written wholly or in part by another person. But the testator has to sign the Will.
  • When the testator does not sign or attest an instrument purporting to be a Will, it would not be a Will, unless it is shown that the Will was written under the testator’s direction or the testator recognized such an instrument as a Will.
  • If the Will is incomplete and this is evident from the face of the instrument, such an instrument shall not be invalid only if it is shown that the non-execution of this Will is due to any other reason than ‘the abandonment of testamentary intentions expressed in the instrument’.[18]
  • In an unfortunate situation where the airman, mariner, or soldier, has died before the execution of the Will but has left written instructions for preparation of his Will.
  • When the Will could not be executed due to his death but the airman, soldier or mariner has left instructions in the presence of two witnesses for preparation of the Will, and such instructions need not necessarily be reduced in writing(in his presence or read over to him). In such a situation, the instructions would constitute his Will. 
  • If the soldier, marine, or airman has made a Will by word of mouth by declaring his intentions in the presence of two witnesses.
  • However, the Will made vide word of mouth would be null and void one month after the testator ceases to be entitled to making a privileged Will.

D.  Revocation:

A Will shall not be deemed insufficiently attested if the person attesting it is also entitled to benefit under the Will, however, the Will would be considered void up to the benefit of such person under the Will he has attested.[19] Further, if the legatee attests a codicil, which confirms the Will, he shall not lose the benefits obtained from the Will.

When a Will has been created in contemplation of marriage(first, or any subsequent marriage), it will not stand revoked by solemnization of the said marriage, because the primary intention of said Will is to survive said solemnization, and the sole objective of this principle is to protect the interests of the new family members of the testator against the survival of any old Wills. Further, if the marriage is not valid, revocation of the Will would also be invalid.[20]  

An unprivileged Will can be revoked by the testator vide another Will or codicil or by some writing declaring their intention to revoke the Will and such Will/codicil/document has to be executed in the same manner as the previous unprivileged Will was executed. Further, it can be revoked by marriage, burning, tearing, or otherwise destroying the same by the testator or in the presence of the testator and under their direction by some other person.[21]

A privileged Will can be revoked vide an unprivileged Will or by an act that expresses an intention to revoke along with formalities that give validity to a privileged Will or by burning or destroying the Will in the presence of the testator or by the testator himself.

E. Revival:

In a situation where the unprivileged Will has been revoked by the testator, it cannot be revived unless the re-execution is as per the provisions of the Act as mentioned hereinabove and the intention to revoke shall be evident. However, in a situation where the Will has been partially revoked and subsequently wholly revoked, at the time of the revival of the Will, the part initially revoked would not be revoked unless an intention to the contrary is shown by such document reviving the Will or codicil.[22]

III.  Probate under Indian Succession Act, 1925

A.   Applicability:

The provisions of probate apply to all grants of probate and letter of administration for a Will, as applicable under this Act. Letter of administration grants all the rights to the administrator which previously belonged to the intestate moments before his death.[23]

Probate of the Will is not granted to any third party or any relative of the testator, it is expressly granted to such persons who are appointed by the Will, otherwise known as the executor. The Act does not mandate that such an appointment has to be made expressly, it could be implied as well. For instance, in a situation where A Wills that C would be his executor if B(who had been initially appointed as executor under the Will)  is dead or is not living at the time of execution of the Will, in this case, C is appointed executrix by implication.

B.   Capability to be granted probate:

The perquisites for a Will are similar to that for a grant of probate. As Will cannot be granted to a person who is a minor or of unsound mind, likewise, probate also cannot be granted to a person of unsound mind or someone who is a minor.[24] Further, it cannot be granted to any association of individuals unless it’s a company(satisfying such conditions specified in the rules framed by the such state government), however, the Supreme Court in the case of Illachi Devi v Jain Society Protection of Orphans India opined that society registered under the Societies Registration Act as a society would not be considered a distinct entity/ separate legal person, and this characteristic of a society disentitles it for grant of probate.[25]

C. Effect of probate:

Probate has the effect of validating all intermediate acts of the executor as willed by the testator through the Will.

The Delhi High Court reiterated that “on grant of probate Section 227 renders valid all the intermediate acts done by the executor. However, the intermediary acts are not validated on the grant of letters of administration.”[26]

D.   Revocation of probates and letter of administration:

The revocation of Will differs from the revocation of probate and letter of administration. In the revocation of Will, there was no involvement of the court. However, in revoking probate and letters of administration the district judge under whose jurisdiction such probate/ letter of administration falls has the power to pass an order for revocation. However, if the probate/letter of administration is beyond the limits as specified in Section 57 of the Act, no district judge can accept the applications for revocation until and unless the state government vide a notification authorizes them to do so.[27]

IV.  Conclusion

The Government enacted the Act to consolidate the law applicable to intestate and testamentary succession, however, the applicability of the Act was restricted because succession of property and assets in India is governed by religious sects and personal laws for different categories of individuals.

This helps us in understanding that if the legislature intended to include other territories within the ambit of the Act they could have, however, they did not as any Hindu willing to dispose of property by Will, can do it as per the Act as provided under Section 30 of Hindu Succession Act 1956.

One must not confuse intestate succession with testamentary succession. As the former arises when a person dies without making a Will, whereas testamentary succession is the division of property of a person after his death as per the Will prepared during their lifetime. Hindu Succession Act of 1956 governs intestate succession as the general rule in intestate succession is that the descendants of the deceased person inherit the property based on the relationship with the deceased.

[1] Section 2(f), Indian Succession Act,1925.

[2] Section 2(h), Indian Succession Act,1925.

[3] Kavita Kanwar vs. Pamela Mehta and Ors.,[ MANU/SC/0450/2020].

[4] Pavitri Devi and Ors. vs. Darbari Singh and Ors.,[ MANU/SC/0577/1993].

[5] Section 66, India Succession Act, 1925.

[6] Section 63, India Succession Act, 1925.

[7] Section 57, Indian Succession Act,1925.

[8] Section 58, Indian Succession Act,1925.

[9] Kanta Yadav vs. Om Prakash Yadav and Ors.,[MANU/SC/0971/2019].

[10] Sanjay Kalra vs. State,[MANU/DE/2213/2023].

[11] Murthy and Ors. vs. C. Saradambal and Ors.,[MANU/SC/1219/2021].

[12] John Vallamattom and Ors. vs. Union of India (UOI), [MANU/SC/0480/2003].

[13] Section 59, Indian Succession Act,1925.

[14] Section 63, Indian Succession Act, 1925.

[15] V. Kalyanaswamy (D) by L.Rs. and Ors. vs. L. Bakthavatsalam (D) by L.Rs. and Ors., [MANU/SC/0528/2020].

[16] Bhagat Ram and Ors. vs. Suresh and Ors.,[MANU/SC/0972/2003].

[17] Section 66, Indian Succession Act, 1925.

[18] Section 66(2)(d), Indian Succession Act, 1925.

[19] Section 67, Indian Succession Act, 1925.

[20] Section 69, Indian Succession Act, 1925.

[21] Section 70, Indian Succession Act, 1925.

[22] Section 73, Indian Succession Act, 1925.

[23] Section 220, Indian Succession Act, 1925.

[24] Section 223, Indian Succession Act, 1925.

[25] Illachi Devi v Jain Society Protection of Orphans India, [MANU/SC/0767/2003].

[26] Satish Kumar Jain vs. State, [MANU/DE/2140/2022].

[27] Section 264, Indian Succession Act, 1925.

Author: Shubham Tibrewala, Associate

Disclaimer: The content of this article is intended to provide a general guide to the subject matter and that the same shall not be treated as legal advice. For any queries, the author can be reached at info@samistilegal.in

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