WILL UNDER INDIAN 

LAW

WILL’ UNDER INDIAN       LAW

Will is the legal declaration of a person’s intention which he

wishes to be performed after his death and once the Will is made
by the testator it can only be revoke during his lifetime. A person
cannot give his ancestors property in the form of a Will but he can
make a Will only of his Self-Acquired property. A Will does not
involve any transfer, nor affect any transfer inter-vivos, but it is
an expression of intending to appoint a person who will look after
the properties after his (Testator) death. A Will regulates the
succession and provides for succession as declared by the testator.

 Historical Background of ‘Wills’: As the time rolled the

emergence of the Will became more popular, Indian Law which is
governed under ‘Section: 5’ of “ The Indian Succession Act,
1925” which provides different rules for intestate succession and
testamentary succession in India. It applies to all the communities
in India except Muslim community. In India there is a well
developed system of succession laws that governs a person’s
 property after his death. ‘The Indian Succession Act
1925’ applies expressly to Wills and codicils made by Hindus,
Buddhists, Sikhs, Jains, Parsis and Christians but not to
Mohammedans as they are largely covered by Muslim Personal
Law.
 Statutory Definition of ‘Will’: The term ‘Will’ is defined
under ‘Section: 2(h)’ of The “Indian Succession Act, 1925”,
means 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 authorised with a power to appoint
any person as beneficiary of his Will whereas ‘Section: 5’ deals
with the law regulating succession to deceased persons moveable
and immovable property
 Meaning of ‘will’: A Will or testament is a legal declaration
by which a person, the testator, names one or more persons to
manage his/her estate and provides for the transfer of his/her
property at the time of death. A Will can be made by anyone
above 21 years of age in India. A Will is a statement made by a
testator in the written form stating the manner in which his
estate/property must be distributed after his death. A Will being a
testamentary document comes into effect after the death of the
testator and if the person dies without writing any Will then he is
said to be have died intestate. The person in whose favour the
testator bestows the benefits called beneficiary or legatee. A Will
is otherwise called as Testament.
 Ø Features of A Valid ‘Will’: There are certain
characteristics  which should  be included in the instrument of
will such as :-
 The Name of The Testator: The name of the testator should
be mentioned accurately without any error in initials, spelling or
grammatical mistake so that it will not affect the instrument of
 Will. The name of the testator can also be clarified by looking into
his birth certificate or any school certificates.
   Right To Appoint Legatee: The testator is having absolute
right to appoint any person as a legatee or beneficiary of a Will
and legatee should execute the Will carefully and in accordance
with the law.
 To Take Effect After Death: A testator who is having power
to make the Will during his lifetime, but it will take effect only
after his death. A gift made by a person during his lifetime and
will take effect during his lifetime, cannot be considered as a Will.
 Revocability Under The Law: In general a Will made by the
testator can be revoke at any time during his lifetime and testator
can choose any other person as his legatee. There may be chances
where a testator wishes to bring some alterations in the Will then
he can make some necessary amendments in the prepared Will
which is otherwise called as Codicil. A third party can not file a
civil suit against the testator on the ground of cancellation of the
Will. A Will made by the testator may be irrevocable in some cases
where an agreement is entered into contrary to the Will, may bind
the testator.
 Intention of The Testator supreme: The testator of the
Will has right to revoke Will at any time which can only be proved
by the intention of the testator that whether he is intending to
revoke the previous testamentary instruments made by him or he
can state in his Will that ‘This is my last Will’ then it can be
presumed that all the earlier testamentary instruments has been
revoked.
 The Declaration to be ‘Last Will’: A person as testator has
power to make declaration of Will unnumerable times but it is
always the last will of testator which will prevail. The words “I
declare this to be my last will” need not be stated in the
instrument of the Will. Once the Will is made by the testator
 Inserting of words ‘Last and Only will’ at the time of death it can
be presumed that all the previous Wills will get revoked and fresh
Will has to be effected.
 Lost Subsequent ‘Will’: Mere loss of the original Will does
not operate a revocation but it has to be inferring by the stringent
evidence to prove its revocability and a testator must show the
genuine reasons for the loss of the Will. Once it is proved that a
original will is lost then ‘Subsequent Will’ will be valid.
 Ø Kinds of ‘Wills’: A testator who has right to make a Will
for the future benefits of his family members which will take effect
after his death, the there are certain types of Wills which has to be
looked into:
1. Privileged ‘Wills’: As it can be understood from the word
privilege provided to certain persons. A privileged Will is one
which is made by any soldier, airman, navy persons, mariner who
are willing to dispose of their estate during their course of
employment. A soldier includes officers and all other rank officers
of service but does not include a civilian engineer employed by the
army, having no military status. A soldier while making an
instrument of Will must have attained the age of 18 years and
where a will made by the soldier is in the oral form, will be valid
only for a month though a written Will always remain operative.
A privileged Will may be revoked by the testator by an
unprivileged Will or codicil, or buy any act expressing an
intention to revoke it and accompanied by such formalities as
would be sufficient to give validity to a privileged Will, or by the
burning, tearing or otherwise destroying the same by the testator.
2. Unprivileged ‘Wills’: Wills executed according to the
provisions of ‘Section 63’ of the ‘Indian Succession Act,
1925’ are called Unprivileged Wills. An unprivileged Will is one
which is created by every testator not being a soldier, airman,
mariner so employed. An unprivileged Will like Codicil can be
 revoked by the testator only by another Will or by some writing
declaring an intention to revoke the same and to be executed in
the manner in which an unprivileged Will can be executed under
the Act or by burning, tearing or destroying of the same by the
testator or by some other person in his presence and by his
directions with the intention of revoking the same.
 Ø Who Can Make ‘Will’: Every person who is competent to
contract may make a will but he must be major, sound mind and
willing to write a Will. Any person who is the sole owner of a self-
acquired property can bequeath by way of will. A person of
unsound mind can also make a will but only in lucid intervals. A
Will cannot be made by some persons i.e. minors, insolvent,
persons disqualified under any law by the court. A Will executed
by a minor is void and inoperative though a testamentary
guardian can be appointed for the minor to dispose off the
property. A Will can be made by the deaf and dumb person by
showing consent through writing or gestures in sign language.
Nothing prevents a prisoner or alien in India from drawing a Will.
 For Whom The ‘Will’ Can Be Made: Any person capable of
holding property can be a legatee under a will and therefore a
minor, lunatic, a corporation, a Hindu deity and other juristic
person can be a legatee. Sections 112 to 117 of ‘Indian
Succession Act, 1925’ put some restrictions on the disposition of
property by will in certain cases. Dispositions of property by will
in some cases have been declared void. If the minor person has
been named as legatee by a testator then a guardian should be
appointed by the testator himself to manage the bequeathed
property.
 What Can Be Bequeath In A ‘Will’: Any movable or
immovable property can be disposed off by a will by its owner,
that property must be a self acquired property of that person and
it should not be an ancestral property of the testator. According
 to Section: 30 of ‘Hindu Succession Act, 1956’ provides that
any Hindu may dispose off by will or other testamentary
disposition any property, which is capable of being so, disposed of
by him in accordance with law.
 Ø General Procedure To Make A ‘Will’: A ‘Will’ should be
prepared with utmost care and must contain several parts to
make a complete Will though there is no defined format for
making a Will but a general procedure should be adopted while
writing a Will by the testator which includes:
1. Declaration In The Beginning: In the first paragraph,
person who is making a Will, has to declare that he is making this
Will in his full senses and free from any kind of pressure and
undue influence and he has to clearly mention his full name,
address, age, etc at the time of writing the Will so that it confirms
that a person really wishes to write a Will.
2. Details of Property and Documents: The next step is to
provide list of items and their current values, like house, land,
bank fixed deposits, postal investments, mutual funds, share
certificates owned by testator. He must also state the place where
he has kept all the documents if the will documents are under safe
custody of the bank then testator has to write details about the
releasing of the Will from the bank. Here it is the most important
duty of the testator to communicate the above matter to the
executor of the Will or any other family members, which will
make the Will valid after testator death.
3. Details of ownership By The Testator: A testator while
making a original Will should specifically mention that who
should own his entire property or assets so that it will not affect
the interest of the successors after his death. If testator wishes the
name of the minor as beneficiary then a custodian of the property
should be appointed to manage the property.
4. Attestation of the ‘Will’ : At the end, once the testator
complete writing his Will, he must sign the will very carefully in
presence of at least two independent witnesses, who have to sign
after his signature, certifying that the testator has signed the Will
in their presence. The date and place also must be indicated
clearly at the bottom of the Will. It is not necessary that a person
should sign all the pages of the Will instrument but he must sign
to avoid any legal disturbances.
5. Execution of A ‘Will’: On the death of the testator, an
executor of the Will or an heir of the deceased testator can apply
for probate. The court will ask the other heirs of the deceased if
they have any 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. A probate is to be treated as conclusive evidence of the
genuineness of a Will. In case any objections are raised by any of
the heirs, a citation has to be served, calling upon them to
consent. This has to be displayed prominently in the court.
Thereafter, if no objection is received, the probate will be granted
and It is only after that Will comes into effect.
 Ø Registration of ‘Wills’: According to the Section: 18 of
the ‘Registration Act, 1908’ the registration of a Will is not
compulsory. Once a Will is registered, It is a strong legal evidence
that the proper parties had appeared before the registering
officers and the latter had attested the same after. The process of
registration begins when a Will instrument is deposited to the
registrar or sub-registrar of jurisdictional area by the testator
himself or his authorised agent. Once the scrutiny of Will
instrument is done by the registrar and registrar is satisfied with
all the documents then registrar will make the entry in the
Register-Book by writing year, month, day and hour of such
presentation of the document and will issue a certified copy to the
testator. In case if registrar refuses to order Will to be registered
 then testator himself or his authorised agent can institute a civil
suit in a court of law and court will pass decree of registration of
Will if court is satisfied with the evidence produced by the
plaintiff. A suit can only be filed within 30 days after the refusal of
registration by the registrar. If the testator willing to withdraw
the Will after the process of registration then a sufficient reason
has to be given to registrar, if satisfied he will order for the
registration of Will.
 Ø Revocation of ‘Wills’: 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. A Will can be revoked by testator
of the Will at any point of time which can be classified into two
aspects such as:-
 Voluntary Revocation: A testator who wishes to
revoke his original Will which is made by him on a specified date
and time, he can make revocation of the will himself by writing a
subsequent Will or codicil duly executed and by destruction of the
previous will, means by burning, tearing, destroying or striking
out the signature of the original instrument of a Will.
 Involuntary Revocation: According to the Section: 69
of the Indian Succession Act, 1925 which deals with revocation of
will by the testator’s marriage, however this provision does not
apply to Hindus. Section 57 of the Indian Succession Act clearly
states that a testator’s marriage will not make the Will invalid.
 Ø Probate: It is the copy of the will which is given to
the executor together with a certificate granted under the seal of
the court and signed, by one of the registrars, certifying that the
will has been proved. The application for probate shall be made
by petition along with copy of last Will and testament of the
deceased to the court of competent jurisdiction. The copy of the
will and grant of administration of the testator’s estate together,
form the probate. It is conclusive evidence of the validity and due
 execution of the will and of the testamentary capacity of the
testator. A probate is obtained to authenticate the validity of the
will and it is the only proper evidence of the executor’s
appointment. The grant of probate to the executor does not confer
upon him any title to the property which the testator himself had
no right to dispose off which did belong to the testator and over
which he had a disposing power with a grant of administration to
the estate of the testator. Probate proceedings cannot be referred
to Arbitration. The probate court (whether it is the District Court
or High Court) has been granted and conferred with exclusive
jurisdiction to grant probate of a Will of the deceased.
 Ø ‘Wills’ By Muslims Under ‘Mohammedan Law’: A
Will under Mohammedan Law is called as Wasiyat, which means
a moral exhortation or a declaration in compliance with moral
duty of every Muslim to make arrangements for the distribution
of his estate or property. The Mohammedan Law restricts a
Muslim person to bequeath his whole property in a will and
allows him to bequeath 1/3rd  of his estate by writing will, which
will take effect after his death. A will may be in the form of oral or
written if the will is in writing need not be signed if signed need
not be attested. Acc to Shia Law if served bequests are made
through a will, priority should be given to determination by the
order in which they are mentioned a bequest by way of will. A Will
Can be made by a person who is  of sound mind, major and
possessing a absolute title, in favour of a person who is capable of 
holding property except unborn persons and heirs. The revocation
of will is possible only if the subsequent Will is made by the
testator. A Muslim person who is allowed to bequeath 1/3rd of his
estate, he can exceed its limit on testamentary power of 1/3rd to
1/4th in case where heirs gives consent or only heir is husband or
wife.
 Ø CASE LAWS:
1. JASWANT KAUR V. AMRIT KAUR & ORS (AIR 1977 SC 74)

             S. Gobinder Singh Sibia was possessed of a large estate

valued at about Rs.15        lacks at the time of his death in the
year 1954. He had two wives Gulab Kaur and Dalip     Kaur. Dalip
Kaur predeceased  him leaving a         son and a grandson
named Surjit. After the death of S. Gobinder Singh, Gulab Kaur
filed a suit for maintenance, claiming alternatively a one-half
share in the estate left by her husband. Surjit contested the said
suit. After the institution of the suit, the Hindu Succession Act,
1956, came into force on June 17, 1956 upon the plaintiff giving
up her claim for maintenance and restricting her suit to a half
share in her husband’s estate, the defendant made an application
for amending his written statement and pleaded that S. Gobinder
Singh had executed a will in the year 1945 bequeathing
practically the entire estate in his favour and leaving a small life
interest in favour of the plaintiff. The amendment application was
filed in March, 1958, after the plaintiff’s evidence was over. The
Trial Court decreed the plaintiff’s suit and .held that the plaintiff
was entitled to a half share in the estate left by Gobinder Singh
and that the defendant had failed to prove the will.

                   In an appeal filed by the defendant, the High Court

set aside the Judgment of the Trial Court and dismissed the
plaintiff’s suit. The High Court held that will was duly established.
Impugned by the order of the High Court an appeal was filed
before the Supreme Court and appeal was allowed in favour of the
appellant by setting aside the order of the High Court.
                   Ratio: Burden of Proof lies on the Executor of
the Will to show Genuineness of Will, which can be proved by
Suspicious Circumstances.

         2.      Shashi Kumar Banerjee and Ors. v/s Subodh

Kumar Banerjee (AIR 1964 SC 529)

This is an appeal on a certificate granted by the Calcutta High

Court. The appellants are the sons of Ramtaran Banerjee
deceased (hereinafter referred to as the testator). They had been
appointed executors under a will purported to have been executed
by the testator on August 29, 1943. The testator was about 97
years old when he died on April 1, 1947. The appellants applied
for probate of the will in the court of the District Judge in June
1947. Their case was that the will in dispute was the last will and
testament of the testator and had been duly executed. The
petition was opposed by Subodh Kumar Banerjee and Sukumar
Banerjee who are also sons of the testator as well as by the
decendants of Sushil Kumar Banerjee and Sanat Kumar Banerjee,
two other sons of the testator who had predeceased him. The
main ground of opposition was that the will had not been
properly executed and attested, though it was also contended that
it was not genuine, and the testator did not have testamentary
capacity at the time of signing the alleged will and that the
execution of the will had been obtained by undue influence,
fraudulent misrepresentation and coercion.

       The case was decided by the District Judge where the issue as
to undue influence, fraudulent misrepresentation and coercion
was abandoned, answered in favour of the appellants. The District
Judge also held that due execution and attestation of the will had
 been proved and that the will was genuine. In appeal to the High
Court, the High Court reversed the judgment of the District Judge
and rejected the petition for probate. Aggrieved by the judgment
of the High Court, appeal was filed in the apex court, where
Supreme Court stated “We hold therefore on a review of the entire
evidence that due execution and attestation of the will in dispute
has been proved as alleged by the propounders and so the
appellants are entitled to probate with a copy of the will attached.
We therefore allow the appeal, set aside the order of the High
Court and restore that of the District Judge. The appellants will
get their costs throughout”.

                   Ratio: The onus of proving the will as genuine is

on the propounder.

 Ø Statutes Relating To ‘Wills’: There are many laws which

are dealing with the concept of ‘Wills’ as follows:
 Indian Succession Act, 1925
 Hindu Law (Hindus Personal Law)
 Muslim Law (Muslims Personal Law)
 Indian Registration Act, 1908