192 ESTATE PLANNING: THE LAW RELATING TO WILLS IN INDIA Ali Waris Rao 1 ABSTRACT This paper attempts to explore the law relating to Wills in India and incorporates a case study approach to examine the relevant case laws relating to testamentary succession ( Wills ) in India. I have begun my paper by mentioning that a Will is a legal affirmation of an individual s goal which he wishes to perform after his death and have further delved into the development of a Will. Additionally, I have enumerated certain basic features of a valid Will, and later examined the types of Will. Subsequently, I have analysed the case of Jagdish Chand Sharma v. Narain Singh Saini in which none of the two essential elements of a valid Will were satisfied i.e., the execution of the Will and its attestation. If we reflect upon the present position, then the Will in question must be scrutinized in-depth to seek the true intention and validity of it. Accordingly, this paper attempts to explain through case laws that the main obligation of the Court is to decide the true intention of the testator from the Will itself by perusing the Will. Keywords: Wills, Legal Affirmation, Execution, Testator, Intention. I. INTRODUCTION A Will is the lawful affirmation of an individual's goal which he wishes to perform after his demise and once the Will is made by the testator it can only be renounced during his lifetime 2. A man can't give his ancestral property as a Will yet he can make a Will only of his Self-Acquired property 3. A Will does not include any transfer, nor affect any transfer intervivos, however it is a statement of planning to designate a man who will take care of the properties after his (Testator) passing. A Will controls the succession and accommodates succession as proclaimed by the testator 4. Further, Jeremy Bentham in his book The Theory of Legislation composed that the object of offering energy to the proprietor to arrange off his 1 Ali Waris Rao is a second year L.L.B students of law at Jindal Global Law School, Sonepat, Haryana. 2 See Menski, Werner. Modern Indian Family Law. Routledge, 2013. 3 Id. 4 Supra Note 2.
193 property by testamentary disposition is to cure the flaw of law to fulfil individual requests which may be manifold 5. He expresses that; The law, not knowing individuals, cannot accommodate itself to the diversity of their wants. All that can be exacted from it is to offer the best possible chance of satisfying those wants. It is for each proprietor, who can and who ought to know the particular circumstances in which those dependent upon him will be placed upon his death, to correct the imperfection of law in all those cases which it cannot foresee. The power to make a will is an instrument entrusted to the hand of the individual, to prevent the private calamities 6. As the time moved by, the development of the Will turned out to be better known. Indian Law, which is administered under Section 5 of The Indian Succession Act, 1925 which gives diverse rules for intestate succession and testamentary succession in India applies to every one of the groups in India apart from the Muslim group 7. In India, there is a well proclaimed arrangement of succession laws that administers an individual's property after his demise. The Indian Succession Act, 1925 applies expressly to Wills and codicils made by Hindus, Buddhists, Sikhs, Jains, Parsis and Christians, yet not to Mohammedans as they are to a great extent governed by their own 'Personal Laws' 8. In India, the law, representing substantive rights in connection with Wills is fixed to the religion of the person. Thus, the respective personal laws will apply taking into account the religion of the testator. Nevertheless, Personal laws may be completely codified (i.e. authorized into statutory law) or halfway codified and mostly customary 9. Then again, for Wills made by Christians, Parsis, persons wedded under the Special Marriage Act, 1954 or under the Foreign Marriage Act, 1969, the provisions of the Indian Succession Act, 1925 will apply 10. Procedural viewpoints, (for example, probate) are administered by the provisions of the Indian Succession Act, 1925 (with a few exemptions in case of Mohammedans). Muslim law has constrained heirship rules under which Muslims are allowed to dispose only 1/3 of their entire property under a Will. On the other hand, more than 1/3 may be passed on if all beneficiaries consent to such 5 See Bentham, Jeremy, and Etienne Dumont. Theory of legislation. Trübner & Company, 1887. 6 Supra Note 5 at pp. 112. 7 See Act, Indian Succession. Bare Act (1925). 8 See Friedman, Lawrence. Dead hands: a social history of wills, trusts, and inheritance law. Stanford University Press, 2009. 9 See Menski, Werner. Modern Indian Family Law. Routledge, 2013. 10 Supra Note 7.
194 transfer either prior to the testator's passing (under Shia law) or after the testator's passing (Both under Sunni and Shia law) 11. It is still a debatable issue whether the British acquainted Wills with Hindus, or whether Hindus received some type of Will affected by Muslims. It is certain that with the foundation of the British principle in India, the English Law of Wills was connected to Hindu Wills, so far as practicable, under the tenets of equity, value and good conscience 12. Among the Muslims, Wills have been perceived from the earliest starting point. It appears to be that a few types of Wills did exist even in the pre-islamic period 13. II. BASIC FEATURES OF A VALID WILL The basic features of a valid Will are 14 : a) Sound Mind The testator must be aware that he is creating a Will, how much property he is having, and he should also know, in whose favour he is making the Will. b) Intention to transfer the property The intention of the testator should be in existence to make the Will in favour of a particular person or persons. c) Name The name of the testator ought to be mentioned precisely with no blunder in initials, spelling or grammatical errors so that it won't affect the instrument of the Will. d) Signature The testator must voluntarily give his signature on the Will made. e) Witness The Will which is being made must be witnessed by at least two adults who understand that they are witnessing a particular document and they should be competent to testify in court and they should also not have any interest in the property in dispute. f) Revocation All in all, a Will made by the testator can be revoked whenever amid his lifetime and testator can choose any other individual as his legatee. 11 See Mahmood, Tahir. Family law reform in the Muslim world. NM Tripathi,1972. 12 See Deininger, Klaus, Aparajita Goyal, and Hari K. Nagarajan. Inheritance law reform and women's access to capital: evidence from India's Hindu Succession Act. World Bank Policy Research Working Paper Series, Vol (2010). 13 See Pearl, David, and Werner Menski. Muslim family law. Sweet & Maxwell, 1998. 14 See Derrett, J. Duncan M. Indian Succession Act, 1925: An Experiment in Social Legislation. The American Journal of Comparative Law (1959).
195 g) Intention of the Testator Predominates The testator of the Will has a right to renounce the Will at his own wish, but which must be demonstrated by the intention of the testator that whether he is meaning to deny the past testamentary instruments made by him or he can state in his Will that 'This is my ultimate Will', then it can be assumed that all the earlier testamentary instruments have been repudiated. h) Execution There must be a statement which should be attested stating that it is the testator s Will and must also state the date and place of signing the document, the signature on the document must be taken before the witnesses in the presence of the testator. i) Attestation A Will must be attested in order to be declared legitimate. j) Lost Will Mere loss of the first Will does not work as repudiation, but rather it must be gathered by the stringent confirmation to demonstrate its revocability and a testator must demonstrate the genuine purposes behind the loss of the Will. When it is demonstrated that at first will is lost, then 'Subsequent Will' will be legitimate. Note: It must be borne in mind that the above mentioned list is not exhaustive. III. TYPES OF WILLS There are certain kinds of Wills that must be investigated; Contingent Will: A Will may be made with the goal that it would become operative upon the occurrence of a specified occasion or an event 15. Such Will won't have any impact if that condition is not satisfied. In Rajeshwar v. Sukhdeo Missir 16, the operation of the Will was deferred till after the demise of the testator's wife. The court held that in the event that it is ambiguous whether the testator planned to make a Will contingent, the words and language of the document as well as in addition the surrounding circumstances are to be mulled over or taken into consideration 17. Joint Wills: Two or more persons can make a joint or a common Will. Whenever two or more persons make a Will by a single instrument, it might be eluded to be as a joint Will 18. In this way, a joint Will is a single instrument whereby two persons give effect to their testamentary 15 See Menski, Werner. Modern Indian family law. Routledge, 2013. 16 AIR 1947 Pat 449. 17 See Mahmood, Tahir. Family law reform in the Muslim world. NM Tripathi,1972. 18 See Derrett, J. Duncan M. Indian Succession Act, 1925: An Experiment in Social Legislation. The American Journal of Comparative Law (1959).
196 disposition. In simple terms, a joint Will is a Will made by two or more testators contained in a solitary document 19. Then again, a shared Will is one of two testamentary papers made separately by two persons, each giving the other comparable rights in his property, so far as they can be, with the end goal of completing the expectation of the two testators 20. The law regards a joint will as being two or more separate wills. However, they are rarely being used in contemporary times. In V. Sarada v. K.V. Narayana Menon 21, the court portrayed the refinement between joint Will and shared Will in the accompanying words; "A joint will, though for all apparent purposes, is a simple testamentary instrument, constitutes or unites in the testamentary disposition of two or more persons. The document only evidences that two or more persons have executed their Wills in a single document. Mutual Wills as distinguished from joint are described as reciprocal Wills. Reciprocity in the matter of bequests under the Wills is the sigil and signet of a mutual Will. The testators should confer upon each other reciprocal benefits." Privileged Will: A privileged Will is one which is made by any soldier, airman, naval force officer, a sailor who is willing to bequest their estate amid their course of employment and livelihood. A fighter incorporates officers and all other rank officers of administration; however, it does not include a civil engineer utilized by the armed forces, having no military status 22. An officer while making an instrument of a Will must be about 18 years of age and where a will made by the soldier is in the oral nature, it would be legitimate just for a period of one month; however a written Will always stands operative. Unprivileged Will: Section 63 of the Indian Succession Act, 1925 provides for unprivileged Will 23. An unprivileged Will is one which is made by each testator not being a soldier, pilot, naval force officer so engaged. An unprivileged Will like Codicil can be revoked by the testator only just by another Will or by some written work, pronouncing an expectation to renounce the same and to be executed in the way in which an unprivileged Will can be executed under the Act or by blazing, tearing or destroying of the same by the testator or by 19 See Miller, J. Gareth. The Machinery of Succession. Professional Books, 1977. 20 See Paruck, Pestonjee Limjee, and V. V. Raghavan, eds. The Indian Succession Act, 1925:(act Xxxix of 1925. Georg Thieme Verlag, 1977. 21 AIR 1989 Ker155. 22 See Sec. 65 Act, Indian Succession. Bare Act (1925). 23 See Act, Indian Succession. Bare Act (1925).
197 some other individual in his presence and by his orientation with the aim of repudiating the same 24. IV. CASE STUDY In the case of Jagdish Chand Sharma v. Narain Singh Saini 25, the Will of the property in dispute was not proved according to law and no probate or letter of administration could be produced. Now, as mentioned above, the essential elements of a valid Will includes execution of the Will and its attestation but none of the two elements were satisfied as none of them were proved by the witnesses within the meaning of the section 63 (c) of the Indian Evidence Act, 1872 which is considered as the mandatory proclamation as per the law. And the most important element, which makes a Will valid, i.e., the intention to attest the Will (i.e. evince animo attestandi) was also lacking in the present case. The Will in question must be scrutinized in-depth to seek the true intention and validity of it. If the witnesses who had attested the Will deny the execution of the Will, the execution may be proved by some other evidence. In the case in hand, the witnesses refused to dispose that the thumb impression and the signature of the testator were held in his presence at the time of the Registration. The evidence of the witnesses also did not indicate the intention to make a Will, which is considered as an essential imperative of the valid attestation of the Will and there was no other evidence which could have proved the execution of the Will. These suspicious circumstances do have an impact on the inalienable imperative of the authenticity of any transfer, which is to be held through a testamentary instrument. Even if the propounder had proved that the Will was signed by the testator and he was in a fit state of mind at the time of executing the Will and he had signed the Will in question on his own free will and the signature had been taken in the presence of the two witnesses who had attested the same in the presence of each other, to discharge his onus to prove the due execution, the court held in Surendra Pal and Ors. v. Dr. (Mrs.) Saraswati Arora and Anr. 26, that even if the onus to prove of the propounder gets discharged, there is a possibility of the situation where the execution of a Will may be veiled by the suspicious circumstances, such as the signature, 24 Id. 25 AIR 2015 SC 2149. 26 1995 4 SCC 459.
198 which may be doubtful, the frail mind of the testator, conspicuous role of the propounder, unfair or unnatural transfer which indicates lack of free will of the testator 27. In another case, 28 the court held that the mere assertion that the document in question was signed by the testator and that the testator was of sound mind at the time of signing the document, cannot make a Will valid by ignoring the doubt produced by the disbelieving circumstances, which leaves the Will ambiguous. The propounder has the obligation to remove or eliminate these distrustful circumstances to make the Will unambiguous before the document in question could be acknowledged as the last Will of the testator 29. In H. Venkatachala Iyengar v. B.N. Thimtnajamma and Ors. 30, the standards guiding the Courts for consideration of suspicious circumstances of a Will being referred to were talked about and whether they stand the test of the day even today. It was stated by the Court that; There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances or, the Will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. 31 In such cases, the Court would normally expect that every genuine suspicion ought to be totally removed before the document is acknowledged as the last Will of the testator. The existence of such suspicious circumstances normally tends to make the beginning onus very overwhelming; and, unless it is attractively released, Courts would be hesitant to regard the document as the last Will of the testator. The Court also observed that, aside from the suspicious circumstances to which the Court has quite recently alluded at times, the Wills propounded uncover another illness. Propounders themselves take the main part in the execution of the Wills which confer on them significant 27 Id. 28 Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors. 1977 SCR (1) 925. 29 Id. 30 AIR 1959 SC 443. 31 Id.
199 advantages. On the off chance, if it is demonstrated that the propounder has received the main part in the execution of the Will and has gotten considerable advantage under it, that itself is for the most part regarded as a suspicious situation going to the execution of the Will and the propounder is required to remove the said suspicion by clear and cogent evidence 32. Furthermore, in another case 33, the Court had stated that the burden of proof that the Will is executed validly and is an indisputable document is on the propounder. The propounder has the obligation to prove that the signature of the testator on the Will is done out of testator s own free will and he is in a fit state of mind and he is capable of understanding the nature and effect of the same. If this is proved by sufficient evidence, the onus of the propounder would be considered as discharged. The onus would be on the applicant to eliminate the distrust by showing sufficient evidence if there is any suspicion in existence. In the case of proving the Will as valid, a mere signature of a testator only would not prove it, if his mind may appear to be very shaky 34. And, if an issue of fraud, coercion or undue influence is raised, the burden would be on the caveator. Subsequently, if there are any suspicious circumstances in existence that would solely be sufficient to come to the conclusion that the execution of the Will has not been proved, then the burden would not be discharged 35. Additionally, the Supreme Court in Anil Kak Vs. Kumari Sharada Raje and Ors. 36 had stated that the writings of the document should be proved to prove the execution of any particular document and if there are any suspicious circumstances in existence, the party who is seeking to acquire probate or letters of administration along with a copy of the Will invaded must also produce sufficient evidence to satisfy the court before it can be accepted as indisputable and genuine. An order which grants probate is a judgment in rem, thus, the court must satisfy its integrity before passing any order. The Will cannot be solely given the effect; it must be scrutinized along with the cross-references 37. It has already been pointed out that apart from suspicious circumstances, if it seems that the propounder has reserved a conspicuous part in the execution of the Will which gives considerable benefits to him that itself is taken as a suspicious circumstance in the execution 32 AIR 1959 SC 443. 33 Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Ors AIR 2007 SC 614. 34 Id. 35 Benga Behera and Anr. v. Braja Kishore Nanda and Ors 2007 9 SCC 728. 36 2008 7 SCC 695. 37 Id.
200 of the Will and the propounder is obligated to eliminate the distrust by sufficient and clear evidence 38. In other words, the propounder has the obligation to satisfy the court that the document is the last Will of the testator. The presence of suspicious circumstances makes the onus much heavier. In cases where the execution of a Will is veiled in disbelief, its proof ceases to be a simple lis between the plaintiff and the defendant 39. What, usually, is an adversary proceeding turns out to be in such cases, a matter of the court's conscience and thereafter the real question which comes into existence is whether the evidence produced by the propounder of the Will is for satisfying the conscience of the court that the Will was executed validly by the testator 40. It is not at all possible to have such satisfaction till the party, which has made the Will, gives a sufficient and satisfactory explanation of the suspicious circumstances. CONCLUSION A will is a legal affirmation of an individual s goal which he wishes to perform after his death. Further, it can only be revoked during his lifetime. Therefore, a Will is an imperative testamentary device whereby the testator can give away his property in accordance with his wishes. Moreover, from the above cases, we can decipher that the essential obligation of the Court is to decide the true intention of the testator from the Will itself by perusing the Will. In addition, a development which would propel the goal of the testator must be supported and as far as possible impact is to be given to the testator's intention unless any other contrary intention appears. 38 AIR 1959 SC 443. 39 S.R. Srinivasa and Ors. Vs. S. Padmavathamma (2010) 5 SCC 274. 40 Id.