Definition
Legal declaration of wishes for disposal of property after death.
Legal document in which a person declares their intention regarding the distribution of their property after death.
Statutory Definition
Indian Succession Act, 1925, Section 2(h).
Etymology & Origin
From Old English 'willa' (wish, desire — from Proto-Germanic *wiljō, from *weljaną, to will, wish). A 'will' is literally the expression of a person's 'will' (wish, desire) — specifically their desire about what should happen to their property and affairs after death. The Latin 'testamentum' (from 'testis', witness — a witnessed declaration) gives 'testament' and 'testamentary,' reflecting the formal witnessed nature of the will.
Full Legal Analysis
A will is defined in Section 2(h) of the Indian Succession Act, 1925 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 will speaks from the date of death — it operates prospectively to transfer property from the testator to the beneficiaries (legatees) at the moment of the testator's death. Until death, a will is revocable and has no legal effect — the testator can change it at any time. A will becomes irrevocable only after the testator's death.
Requirements for a valid will under the Indian Succession Act, 1925: (1) Testamentary Capacity (Section 59 ISA) — the testator must be of sound mind and not a minor (below 18 years); (2) Animus Testandi — the intention to make a will; (3) Writing — a will must be in writing (oral wills are valid only for soldiers and sailors on active duty under the Soldiers' and Airmen's Wills Act, 1939); (4) Signature — the testator must sign (or fix their mark to) the will; (5) Attestation (Section 63 ISA) — the will must be attested by two or more witnesses, each of whom must have seen the testator sign and must themselves sign in the testator's presence. A beneficiary named in the will should not act as an attesting witness — their bequest under the will would be void.
The Supreme Court laid down the principles governing the proof of a will. The Court held that a will is required to be proved by attesting witnesses if an objection is raised. The onus of proving the will is on the propounder (the person propounding the will — typically the executor or a beneficiary); the propounder must remove all suspicion and satisfy the court that the will was signed by the testator in their sound and disposing state of mind. Where the circumstances of the will's execution are suspicious (the testator was very old, bedridden, the will benefits the persons who arranged its execution), the propounder must affirmatively prove the testator's mental capacity and freedom from undue influence.
Probate is the legal process for establishing the validity of a will after the testator's death. Section 222 ISA requires probate for wills of immovable property in certain areas (Presidency Towns — Mumbai, Kolkata, Chennai) — probate is mandatory and no title can pass without it. In other areas, probate is optional but provides conclusive proof of the will's validity. A 'Letter of Administration' (where there is no will or the will does not appoint an executor) and a 'Succession Certificate' (for recovery of debts and securities) are related instruments under the ISA.
For advocates, will-related work includes: (1) drafting wills — ensuring all requirements of Section 63 ISA are met and the testator's intentions are clearly expressed; (2) probate proceedings — filing and defending probate petitions; (3) will challenges — on grounds of forgery, the testator's incapacity, or undue influence (applying H. Venkatachala standards of proof); and (4) intestate succession — where a person dies without a valid will, advising on the applicable succession law (Hindu Succession Act, Indian Succession Act for Christians and Parsis, Muslim Personal Law for Muslims).
This Term in Indian Statutes
Indian Succession Act, 1925, 1925
"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: the testator shall sign or shall affix his mark to the will; 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."
H. Venkatachala: onus on propounder — remove all suspicion; two witnesses mandatory; beneficiary-witness voids bequest; probate mandatory in Presidency Towns; speaks from death not execution date
