Saji Koduvath, Advocate, Kottayam.

Is it a Valid Will?

• “My house will go to my wife on my death. The plot I have on north of my residential property will go to my daughter.
• XYZ (signed)
• Witnesses: 1. HIJK (signed) 2. LMNOP“ (signed)

Yes, it is valid; even though it does not contain –

• Address of the person (testator) who wrote the Will (but, it must be identifiable).
• Addresses of the persons (legatees) to whom the properties are given (but, it must be identifiable).
• The details of the properties (but, it must be identifiable).
• Address of the witnesses (but, it must be identifiable).

What are the essentials of a Will?

• Identity of the person who wrote the Will.
• Identity of the person to whom the property is given (bequeathed).
• Identity of the properties.
• Intention to bequeath (give under the Will).
• Signature of the executant (testator).
• Attestation by Two Witnesses, in presence of the testator.

A Will need not be –

• On stamp-paper.
• Registered.
• Written in any specified form.
• With an executor (one who is named to execute the intentions expressed in a Will).

Who can be a Witness?

• Adult.
• A beneficiary in the Will should not be an attester (if so, he will lose the benefit under the Will; and that portion will be treated as intestate property – that is, without a Will).

What will invalidate a Will?

• Incapacity (minor, lunatic, etc.)
• Force, fraud, etc.
• Illegibility as to executant, beneficiary, property, etc.
• Lack of expression – to be a Will.
• Lack of Signature or mark of the executant, completing the Will.
• Lack of Attestation by two witnesses (in presence of executant).
• Execution of a subsequent Will.
• Subsequent marriage. (See Sec. 69 of the Succession Act, 1925 given below.)

What all are Desirable?

• Date.
• Complete details as to executant, beneficiary, property, etc.
• Circumstance of executing the Will.
• Reason, if any, for not giving property to all legal heirs (wife/ husband, children, etc.) – if the legatees (to whom property is given under the Will) are some of the legal heirs only.
• Reason, if any, for not giving property to the legal heirs – if the legatee is not a legal heir.
• Legible Writing (can be printed before putting signature).
• Clear and simple language.
• Registration (at Sub Registrar’s Office).

How to cancel or revoke a Will?

Adopt any one of the following method.

• By some writing, attested by two witnesses (in the manner in which a Will is executed) declaring an intention to revoke the Will (Sec. 70 of the Succession Act, 1925).
• By the burning, tearing, or otherwise destroying the same by the testator (Sec. 70 of the Succession Act, 1925).
• If the Will is a registered one, it is desirable to cancel it by another registered Statement.
• Simply write another Will (Better to state – earlier Will is cancelled).

Will marriage Revoke Will, automatically

• Every will shall be revoked by the marriage of the maker. (See Sec. 69 of the Succession Act, 1925 given below.)

Read Blog: How to Prove a Will, in Court?

End Notes:

Will – Attestation under Sec. 63(c) of the Succession Act

Sec. 63(c) of the Succession Act, 1925 says how Wills have to be executed. It is laid down as under.

Sec. 63(c) of the Indian Succession Act –

• “63. Execution of unprivileged wills––Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules––
• .(a) …..
• (b) …..
• (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.”

It is not Necessary – Witnesses must See Execution of Will

The attestation of a Will, under Sec. 63 of the Succession Act can be made –

• either by
• the witnesses who have “seen the testator sign or affix his mark”
• or by
• the witnesses who have “received from the testator a personal acknowledgment of his signature or mark”.

That is, both the attesting witnesses need not be present at the time of execution of the Will. And, one witness need not see the other attests the Will. It is fortified by last limb of Sec. 63 Succ. Act.

• “but it shall not be necessary that more than one witness be present at the same time …..”

Section 69 of the Indian Succession Act, 1925

• 69. Revocation of will by testator’s marriage – Every will shall be revoked by the marriage of the maker, except a will made in exercise of a power of appointment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.
• Explanation – Where a man is invested with power to determine the disposition of property of which he is not the owner, he is said to have power to appoint such property.

Section 70 of the Indian Succession Act, 1925

• 70. Revocation of unprivileged Will or codicil — No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.
• Illustrations
• (i) A has made an unprivileged Will. Afterwards, A makes another unprivileged Will which purports to revoke the first. This is a revocation.
• (ii) A has made an unprivileged Will. Afterwards, A being entitled to make a privileged Will makes a privileged Will, which purports to revoke his unprivileged Will. This is a revocation.

Sec. 71 of the Indian Succession Act, 1925

• 71. Effect of obliteration, interlineation or alteration in unprivileged Will—No obliteration, interlineation or other alteration made in any unprivileged Will after the execution thereof shall have any effect, except so far as the words or meaning of the Will have been thereby rendered illegible or undiscernible, unless such alteration has been executed in like manner as hereinbefore is required for the execution of the Will: Provided that the Will, as so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is made in the margin or on some other part of the Will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the Will.

Sec. 74 of the Indian Succession Act, 1925

• 74. 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.

Sec. 100 of the Evidence Act

• 100. Saving of provisions of Indian Succession Act relating to wills -Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (10 of 1865) as to the construction of wills