Rule
A will is the legal declaration of the intention of a testator about his property, which he wants carried into effect after his death (S.2(h), Indian Succession Act). A codicil is an instrument made in relation to a will, explaining, altering or adding to its dispositions, and is deemed part of the will (S.2(b)).
- A will takes effect only on death. Until then it can be revoked or altered at any time (S.62).
- An ordinary (unprivileged) will must be in writing, signed by the testator and attested by two or more witnesses (S.63).
The testator is not there to explain his wishes when the will is read. So the law insists on writing, signature and two witnesses, and lets him change his mind freely while he lives.
| Provision | What it says |
|---|---|
| S.2(h), S.2(b) | Definitions of will and codicil |
| S.59 | Every person of sound mind who is not a minor may make a will |
| S.61 | A will caused by fraud, coercion or importunity that takes away free agency is void |
| S.62 | A will may be revoked or altered at any time while the testator is competent |
| S.63 | Execution of unprivileged wills |
| S.67 | A bequest to an attesting witness or his or her spouse is void, but the will stays valid |
| S.69 | Revocation by marriage (does not apply to Hindus, Buddhists, Sikhs and Jains) |
| S.70 | Revocation by later will or codicil, by a signed writing, or by destruction |
| S.18, Registration Act | Registration of a will is optional |
Requirements
Valid execution under S.63:
| # | Requirement | What to check |
|---|---|---|
| 1 | Testator has capacity (S.59) | Not a minor. Knows what he is doing at the time. A person usually insane may make a will in a lucid interval |
| 2 | Free will (S.61) | No fraud, coercion or importunity |
| 3 | In writing | Any language |
| 4 | Signed by the testator, or by another in his presence and by his direction | Signature or mark placed so that it appears intended to give effect to the writing as a will |
| 5 | Attested by two or more witnesses | Each saw the testator sign or affix his mark, or got his personal acknowledgment of it |
| 6 | Each witness signs in the testator's presence | No particular form of attestation is needed. The witnesses need not sign in each other's presence |
Muslims are outside these rules (S.58). Their wills follow Muslim personal law, which allows an oral will and limits the bequest to one third of the estate without the heirs' consent.
Revocation (S.69, S.70)
An unprivileged will or codicil is revoked only:
- by the testator's marriage, where S.69 applies;
- by another will or codicil;
- by a writing declaring an intention to revoke, executed like a will; or
- by burning, tearing or otherwise destroying it, by the testator or by someone in his presence and by his direction, with intent to revoke.
A later will revokes an earlier one fully if it says so, and otherwise only so far as the two are inconsistent.
Kinds of bequest
| Kind | Meaning | Example |
|---|---|---|
| Specific | A particular, identified item | "My house at Plot 5" |
| General | A sum or item from the general estate | "Rs.5 lakhs to my nephew" |
| Demonstrative | A general sum from a named fund | "Rs.5 lakhs from my SBI deposit" |
| Residuary | What is left after other bequests | "The rest of my property to C" |
| Conditional or contingent | Depends on a condition or uncertain event | "To A if he qualifies as a lawyer" |
Illustrations
1. Valid unregistered will
- Facts: Ramesh writes his will, signs it at the end in front of two friends, and each friend signs in his presence. It is never registered.
- Result: A valid will (S.63).
- Why: Registration is optional (S.18, Registration Act).
2. Gift to a witness
- Facts: Meena's will leaves Rs.10 lakhs to her neighbour Kiran, who is also one of the two attesting witnesses.
- Result: The bequest to Kiran is void. The rest of the will is valid (S.67).
- Why: A witness should not gain from the will he attests.
3. Lucid interval
- Facts: Arun suffers from a mental illness but makes his will on a day when, as his doctor confirms, he fully understands what he is doing.
- Result: The will can be valid (S.59).
- Why: Capacity is judged at the time of making the will.
4. Codicil
- Facts: A will leaves the house to A. A later codicil says the house shall go to B instead.
- Result: B takes the house. The rest of the will stands.
- Why: The codicil is part of the will and changes only what it covers.
5. Torn will
- Facts: Tara tears up her will in anger, saying she wants none of it to stand.
- Result: The will is revoked (S.70).
- Why: Destruction by the testator with intent to revoke.
Key Cases
H Venkatachala Iyengar v BN Thimmajamma, AIR 1959 SC 443
- Facts: A will was challenged on the ground of suspicious circumstances around its making, including the propounder's part in it.
- Held: The propounder must prove due execution and the testator's sound and free mind. Where suspicious circumstances exist, he must remove them to the court's satisfaction.
- Principle: The leading test for proving a will under S.63 and S.68, Evidence Act (now S.67, BSA).
Distinctions
| Basis | Will (ISA) | Gift (S.122, TPA) |
|---|---|---|
| Takes effect | On death | At once |
| Revocable | Freely until death (S.62) | Only under S.126 |
| Acceptance | Not needed in the testator's life | Needed in the donor's life |
| Registration | Optional | Required for immovable property |
| Property covered | Property owned at death | Existing property at the date of gift |
| Attestation | Two witnesses (S.63) | Two witnesses for immovable property (S.123) |
| Basis | Will | Codicil |
|---|---|---|
| Nature | The main testamentary document | Explains, alters or adds to a will |
| Stands alone | Yes | No, it relates to a will |
| Formalities | S.63 | S.63 |
| Can revoke | An earlier will | The will or part of it, if it says so or is inconsistent |
Exam Scenario
T makes a will in 2020 leaving his house to A. In 2022 he makes a codicil leaving his car to B. In 2024 he makes a second will: "All my property to C." He dies in 2025. Who takes what?
Approach
- Met: The 2020 will and the 2022 codicil are read together. House to A, car to B.
- Issue: The 2024 will has no express revocation clause.
- Met: It is wholly inconsistent with the earlier gifts, because it gives all the property to C.
- Issue: A later will revokes the earlier one to the extent of inconsistency (S.70).
Conclusion: C takes everything, including the house and the car. A and B take nothing.
Remedy: None for A or B, unless they can show the 2024 will was not validly executed under S.63, or was caused by fraud, coercion or importunity (S.61). If the 2024 will had left only "my bank deposits" to C, the gifts to A and B would stand.
Recall Check
- What does S.63 require for a valid will?
- Who can make a will under S.59?
- In what ways can a will be revoked under S.70?
- What happens to a bequest to an attesting witness?
Flashcards
How does S.2(h) define a will?
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.
What is a codicil?
An instrument made in relation to a will, explaining, altering or adding to its dispositions, and deemed to form part of the will (S.2(b)).
What are the execution requirements under S.63?
(1) Signed by the testator, or by another in his presence and by his direction, placed so as to give effect to the writing as a will, (2) attested by two or more witnesses, each of whom saw him sign or got his acknowledgment, and (3) each witness signs in the testator's presence.
Is registration of a will mandatory?
No. Registration is optional (S.18, Registration Act). An unregistered will is valid if S.63 is complied with.
When does a will take effect?
Only on the testator's death. No interest passes during his lifetime, and he may revoke or alter it until then (S.62).
Who lacks capacity to make a will (S.59)?
Minors, and persons who at the time do not know what they are doing because of unsoundness of mind, intoxication or illness. A person usually of unsound mind may make a will in a lucid interval.
How can a will be revoked?
Under S.70: by marriage where S.69 applies, by a later will or codicil, by a writing declaring an intention to revoke executed like a will, or by burning, tearing or otherwise destroying it with intent to revoke.