The law governing Wills in India is the Indian Succession Act, 1925 (hereinafter "Act").
Section 2(h) of the Act defines a "Will" as "the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death." A testator is the person making the Will.
Section 59 of the Indian Succession Act, 1925 talks about persons capable of making Wills. The said Section provides –
"Every person of sound mind not being a minor may dispose of his property by Will.
Explanation 1.-A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.-Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.-A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.-No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing."
Section 72 provides for "Wording of will.--It is not necessary that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom."
Section 87 of the Act provides that a testator's intention is to be give effect to as far as possible.
Section 63 lists out the conditions for making a Will. It provides for the execution of a Will
"according to the following rules:-
(a) 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.
(b) 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.
(c) 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 acknowledgment of his signature or mark, or of 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."
Thus, a Will has not only to be signed by the person making it i.e. the testator but it is necessarily required to be signed by two or more witnesses who are required to sign the Will in the presence of the testator but it is not necessary that the witnesses sign the Will in each other's presence.
It is preferable to have a holographic Will which is a Will and Testament that has been entirely handwritten and signed by the testator but even a typed Will which fulfils the requirements of the Act and clearly expresses the intention is valid.
In Babu Singh and Ors. vs. Ram Sahai @ Ram Singh, (2008) 14 SCC 754, it was held, "10. Indisputably a Will is to be attested by two witnesses in terms of Section 63(1)(c) of the Indian Succession Act. Indisputably, the requirement of Section 68 of the Indian Evidence (the Act) is required for to be complied with for proving a will. Section 63(1)(c) of the Indian Succession Act mandates attestation by two witnesses. Thus not only the execution of Will must be proved, but actual execution must also be attested by at least two witnesses. Attestation of execution of Will must be in conformity with the provisions of Section 3 of the Transfer of Property Act."
Under Section 62 of the Act, "A Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will." If a Will is altered, the instrument altering the Will or adding to it is known as a Codicil. Section 2(b) of the Act defines a codicil as "an instrument made in relation to a Will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the Will".
Section 18 of the Indian Registration Act, 1908 provides that registration of Wills is optional but some jurisdictions in India have made registration compulsory.
A Will (whether registered or not) is required to be probated in a court of law to give proper effect to the intentions of a testator. Section 2(f) of the Act defines probate. As per the said section, "probate" means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator". Probate is only granted to an executor appointed by the Will. Section 222 of the Act provides that such "appointment may be expressed or by necessary implication". Executor is defined in Section 2(c) of the Act as "a person to whom the execution of the last Will of a deceased person is, by the testator's appointment, confided". Administrator is defined in Section 2(a) of the Act as "a person appointed by competent authority to administer the estate of a deceased person when there is no executor".
Section 227 says that after the probate of a Will is granted then it becomes effective from the death of the testator and shall render valid all intermediate acts of the executor as such. Therefore, according to Section 227, the moment the probate is granted it will relate back from the date of death of the testator and all property will be vested in the person in whose favour the probate was granted.
A Constitution Bench of the Hon'ble Supreme Court in Shashi Kumar Banerjee & Ors. vs. Subodh Kumar Banerjee since deceased and after him his legal representatives & Ors., AIR 1964 SC 529, held –
"4. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, AIR 1959 SC 443 and Rani Purnima Devi v. Khagendra Narayan Dev,  3 SCR195). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations." (Emphasis supplied)
In Delhi Development Authority vs. Mrs. Vijaya C. Gurshaney & Anr., (2003) 7 SCC 301, it has been held,
"It is settled law that a Testamentary Court whilst granting Probate or Letters of Administration does not even consider particularly in uncontested matters, the motive behind execution of a testamentary instrument. A Testamentary court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a Probate or Letters of Administration does not confer title to property. They merely enable administration of the estate of the deceased. Thus, it is always open to a person to dispute title even though probate or Letters of Administration have been granted." (Emphasis supplied)
Some suspicious circumstances surrounding the execution of a Will are listed below –
- Bharpur Singh & Ors. vs.Shamsher Singh,
(2009) 3 SCC 687
"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 testators 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. [Para 17] The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not."
- Apoline D'Souza vs. John
D'Souza, (2007) 7 SCC 225
"Evidence Act, 1872 - Sections 63 and 68--Will--Proof of execution--Suspicious circumstances--Testatrix being 96 years old lady--Nothing to show as to who drafted Will or at whose instance it came to be registered--P.W. 2 is attesting witness--When she came to house of testatrix--Will had already been written--Will full of suspicious circumstances--No evidence to show that contents of Will were read over and explained to testatrix--Several cuttings and overwritings also in Will--It is for propounder of Will to remove suspicious circumstances--That has not been done--High Court rightly held Will not proved--No merit in appeal.
Ratio Decidendi: Will - Manner and mode of due execution of 'will' indisputably will depend upon facts and circumstances of each case."
- Anil Kak vs. Kumari Sharada Raje &
Ors., 2008 (3) MPJR (SC) 102
"It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will.
Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation."
To conclude, a Will must be executed in terms of the requirements of the Indian Succession Act i.e. it must be signed and attested by two witnesses. The intention of the testator should be clear. While applying for probate of a Will, the propounder of the Will is under a duty to discharge his/her obligation to show that the Will was genuinely executed and its execution is free from suspicious circumstances. Where any person alleges undue influence, fraud or coercion in the execution of a Will, the onus is on him to prove the same.
1 "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.