Mahesh C. Gupta (149)
B.Com (Hons) MBA AICWA, FCS, LLM

A will is a document which contains the last wishes of a person as regards the manner and mode of disposition of his property. “Will” signifies a wish, desire or choice of a person regarding legal disposition of his property. It is the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. A Codicil is an instrument which explains, alters or adds to the disposition of a will and it is deemed to form a part of a will.

Every individual owns a reasonable amount of wealth, particularly immovable properties. He has complete discretion on how he wants to deal with his property. He can give property to some persons he wants and avoid others. Several succession disputes regarding the business arises after the head of the family dies intestate. Through a will a person may reward his friend, old servant or an employee, which would not be possible otherwise. Making a will does not mean an insurance against succession disputes. Often it is said where there is a will, there is a legal dispute. The same was witnessed in Priyambda Birla’s will in favour of Rajan Lodha, the Chartered Accountant of the testator.

The preparation of will does not require any specific legal language. It can be written in any language. There is no specific legal format. It need not be even typed. It can be in the hand writing of the testator or any other person. A will need not be stamped or written on a stamp paper. No stamp duty is payable on will. It can be written on a plain paper. The registration of will is not compulsory. However, the registration has its own advantages e.g. loss of a will, hallenging the authenticity of a will. A person can change or revoke his will as often as he desires. Ultimately, the last valid will prevails over earlier wills, if any, executed by the testator. It is therefore, normally mentioned in every will that this will revokes earlier wills (except first will). People of all faith and religion can make a will. However, in case of Muslims, according to Islamic Law only 1/3 of the property can be bequeathed by way of will and the balance 2/3 of the property shall devolve according to applicable “Shariat Law.”

In case a person does not prepare a will and dies, his property would devolve as per the applicable succession law. In case of Hindus, jains, Sikhs and dhists, as per Hindu Succession Act, 1956 and in case of Christians and Parsis as per the Indian Succession Act, 1925. Pursuant to section 30 of the Hindu Succession Act, 1956, a coparcener can bequeath his undivided share in the Hindu Undivided Family by way of a will. A will takes effect only after the death of the person making the will. Till, he is alive, it has no effect.

While preparing a will care should be taken to the effect that the testator’s immediate family members should be described by names, age and relationship to the testator.

Further it should also be made clear that who will get what property. If a family member is to be excluded, it is better to give reasons for his exclusion.

Members of armed forces can execute privileged will which may be oral or in writing, if such person is on expedition or engaged in actual warfare/combat. In other cases, the will should be in writing. The testator must sign the will or affix his mark like thumb impression on the will. It is advisable to sign each page of a will to avoid any dispute amongst the claimants after the death of the testator. It must also be dated to give authenticity to the will that which is the last will. Section 63 of Hindu Succession Act requires that the will should be attested by two or more witnesses, each of whom has seen the testator sign the will or affix his mark. Each of the witness must sign the will in the presence of the testator. No particular form of attestation is provided. It is important to note
that the attesting witnesses need not know the contents of the will. All that they attest, is the testator’s signatures or thumb impression. Normally, a witness or his spouse can not be made beneficiary under the will as any
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bequest in their favour would be void. Normally, a professional such as a lawyer, a Chartered Accountant, Company Secretary or a Doctor who is known to the testator may be requested to act as a witness. This acts as a barrier against the claims that the testator was mentally unstable when he made the will. A will can always be revoked by the testator and an irrevocable will has no meaning.

A probate is a certificate from the High Court certifying the genuineness and finality of the will. It is the final word on whether the will is genuine or it has been obtained by fraud, coercion etc. For obtaining the probate, the applicable court fee stamp is payable as per the rates prescribed in the different states and which may be linked to the value of property bequeathed. In Maharashtra, the court fee stamp for obtaining a probate ranges from 2% to 7.5% of the roperty value subject to maximum of Rs. 75,000/-. A will, suo moto, without obtaining a probate from a court is not accepted by the concerned companies or thorities as it is difficult for them to decide that which is the last will of the testator.