Last Will, Lasting Impact: A Comprehensive Study of the Law of Wills and its Development


By Vishakha Sharma

This research paper delves into the complex subject of the Law of Wills in India, examining its historical origins, fundamental principles, and significant case laws. By exploring the nuances of testamentary capacity, formalities, and the role of the probate court, this paper aims to provide an in-depth understanding of the topic and how various legal precedents have shaped the field in the Indian context. The study draws upon numerous case laws to highlight the intricacies of the Law of Wills and the implications these cases have on current legal practice in India.

The Law of Wills refers to the comprehensive collection of regulations and judicial principles that manage the origination, elucidation, and execution of wills. A will is a critical legal instrument that stipulates how a testator— the individual making the will— intends their possessions to be disseminated posthumously. These possessions might comprise real estate, monetary assets, and personal belongings. The formulation of a will is usually an intricate process, demanding a deep understanding of specific legal requirements to ensure the will's validity.

Moreover, the Law of Wills aids in interpreting the will in instances where the testator's desires may not be explicitly stated or if a dispute arises concerning the will's legitimacy or its provisions. A cornerstone of this law is testamentary capacity, which asserts that the testator must be of sound mind while creating the will to comprehend the repercussions of their decisions.

This article aims to delve into the Law of Wills' underlying principles, seeking to unravel the intricate jurisprudence that frames this field. A significant part of this exploration involves scrutinizing key judicial precedents that have substantially influenced its evolution. Each case invariably contributes a distinctive element, either by introducing a new interpretation, clarifying an existing rule, or occasionally, redefining the existing norms. Case law often reflects the societal shifts and adaptations to the evolving complexities of wealth distribution, thereby contributing to the dynamic character of the Law of Wills. As such, an examination of the Law of Wills demands a careful study of these cases as they have collectively played a pivotal role in shaping this important area of law over time.

Origins of the will

The concept of wills dates back to ancient civilizations, with Roman law having a significant influence on modern testamentary law. The English legal system adopted and refined these principles, eventually forming the basis for the Law of Wills in common law jurisdictions. Over time, various statutes and judicial decisions have further refined the legal framework governing wills. The Indian legal system governing wills is influenced by both Hindu and English legal traditions. The Indian Succession Act of 1925 forms the basis of the Law of Wills in India, encompassing various aspects of testamentary succession and applicable to all communities, except Muslims.

The acts governing the Law of Wills in India were enacted to provide a comprehensive legal framework for the making and execution of wills and to reform the discriminatory laws of inheritance and succession in India. The cases that led to the enactment of these acts highlighted the need for a uniform law of succession for all Indians, irrespective of their religion, and the need to provide equal rights to women in matters of inheritance and succession. The acts have been amended from time to time to address the changing social and economic conditions in the country. The Indian Succession Act, 1925, was enacted by the British Indian Government and is based on the English common law. The act was enacted to provide a uniform law of succession for all Indians, irrespective of their religion. The act replaced the various personal laws of different religions and provided a comprehensive legal framework for the making and execution of wills.

Indian Succession Act, 1925

The Indian Succession Act, 1925, is applicable to all persons domiciled in India, including Christians, Parsis, and Jews. The act provides a legal framework for making a will and specifies the formalities that must be followed for a will to be considered valid. The act requires that the testator must have testamentary capacity and must sign the will in the presence of at least two witnesses. The witnesses must also sign the will in the presence of the testator.

The Indian Succession Act, 1925, lays down certain formalities that must be followed for a will to be considered valid. Firstly, the will must be in writing, and it must be signed by the testator or by someone authorized by the testator in their presence and by their direction. Secondly, the testator must sign or affix their mark on the will in the presence of at least two witnesses. Finally, the witnesses must also sign the will in the presence of the testator.

In India, a will must be in writing to be considered valid. A will can be written in any language and can be in any form. However, the will must be signed by the testator or by someone authorized by the testator in their presence and by their direction. If the testator is unable to sign the will, they can affix their mark instead. The will must also be signed or affixed with the mark in the presence of at least two witnesses who must sign the will in the presence of the testator.

To create a valid will, a testator must possess testamentary capacity. This capacity involves the testator's understanding of the nature of the act, the extent of their property, and the claims of those who might expect to benefit from the estate. A valid will must comply with certain formalities, which differ based on jurisdiction. In India, the requirements include a written document, the testator's signature, and the presence of witnesses. Section 63 of the Indian Succession Act outlines the formal requirements for wills in India. It stipulates that a will must be in writing, signed by the testator, and witnessed by at least two individuals. In the case of GurupadKhandappaMagdum v. HirabaiKhandappaMagdum (1981) 3 SCC 544, the Supreme Court of India held that a will must be signed by the testator in the presence of two witnesses who must also sign the will in the presence of the testator. The court also held that the testator must sign or affix their mark on every page of the will.

Probate: Probate is the process of proving the authenticity of a will in court. In India, probate is not mandatory. However, if a will is challenged, the court may require probate to be obtained. The probate court will examine the will to ensure that it meets all the formalities required by law. Once the court is satisfied that the will is valid, it will issue a probate certificate. In the case of Lakshmi Amma v. Kunhikannan AIR 2007 Kerala 51, the court held that probate is not mandatory in India. However, if a will is challenged, the court may require probate to be obtained. The court also held that the probate court must verify the testamentary capacity of the testator and ensure that the will was not made under duress or coercion.

In India, the probate court (or district court) is responsible for overseeing the administration of estates, ensuring that a will's provisions are carried out according to the testator's wishes and that all legal requirements are met. The case of Niranjan Panjav. Monoranjan (2007) illustrates the role of the probate court in determining the validity of a will. The court considered the evidence and circumstances surrounding the execution of the will and determined its validity, demonstrating the importance of the probate process in ensuring the proper distribution of a testator's assets.

Testamentary Capacity: The Indian Succession Act, 1925, does not provide a definition of testamentary capacity. However, the act does state that the testator must be of sound mind, memory, and understanding at the time of making the will. The term "sound mind" refers to a person's mental capacity to understand the nature and extent of their property and the effect of their actions in making the will. The term "memory" refers to a person's ability to remember their relationships with their family and friends and the details of their property. The term "understanding" refers to a person's comprehension of the consequences of their actions in making the will.In the case of Guruswamy v. Bhaskara Raju AIR 1950 Madras 35, the court held that testamentary capacity requires that the testator must have a sound disposing mind and memory. The testator must be able to understand the nature and extent of their property and the effect of their actions in making the will. The court also held that if the testator suffers from a delusion, it does not necessarily mean that they lack testamentary capacity.

Revocation of a Will: A will can be revoked at any time by the testator. The testator can revoke their will by executing a new will or by destroying the will with the intention of revoking it. If a will is revoked, the property will be distributed as per the rules of intestate succession.

Revival of a Will: If a will is revoked, it can be revived if the testator later decides to reinstate the will. The revival of a will can be done in two ways. Firstly, the testator can execute a new will that revives the previous will. Secondly, the testator can execute a codicil, which is an amendment to the original will that revives the revoked provisions. In the case of Vishwanath Pandurang Kini v. Sarojini Vishwanath Kini AIR 1985 SC 836, the Supreme Court of India held that a will can be revived by executing a new will that expressly revives the previous will or by executing a codicil that amends the previous will and revives the revoked provisions.

Law of Wills under different laws

The Law of Wills in India is governed by different laws for different religions, including the Indian Succession Act, 1925, the Hindu Succession Act, 1956, and the Muslim Personal Law (Shariat) Application Act, 1937. Each of these laws has its own provisions and requirements for making a valid will.

Hindu Succession Act, 1956: The Hindu Succession Act, 1956, was enacted to reform the Hindu law of inheritance and succession, which was discriminatory towards women. Before the enactment of this act, a woman had limited rights to her husband's property and was considered inferior to male heirs. The act gave equal rights to daughters in the property of their parents and abolished the concept of 'stridhan,' which treated a woman's property differently from that of a man's. The Hindu Succession Act, 1956, is applicable to all Hindus, including Buddhists, Sikhs, and Jains. The act provides for both intestate and testamentary succession. The act also lays down the rules for the distribution of property among heirs. The act allows a Hindu to dispose of their property through a will. However, the will must be in writing and must be signed by the testator and attested by at least two witnesses.

In the case of Prakash v. Phulavati (2016) 2 SCC 36, the Supreme Court of India held that the amendment to the Hindu Succession Act, 1956, in 2005, which gave daughters equal rights as sons in the coparcenary property, would apply retrospectively.

In the case of Danamma v. Amar AIR 2018 SC 3438, the Supreme Court of India held that the amendment to the Hindu Succession Act, 1956, in 2005, which gave daughters equal rights as sons in the coparcenary property, would apply even to the cases where the father had died before the amendment.

Muslim Personal Law (Shariat) Application Act, 1937: The Act was enacted to provide for the application of the Islamic law of inheritance and succession to Muslims in India. Before the enactment of this act, Muslims were governed by the Hanafi School of Islamic law, which was based on the Islamic law of inheritance and succession. The act provided for the application of the Shariat law in matters related to inheritance and succession for Muslims.

The Muslim Personal Law (Shariat) Application Act, 1937, is applicable to all Muslims in India. The act provides for the application of the Islamic law of inheritance and succession to Muslims. Under the Islamic law of succession, a Muslim can dispose of one-third of their property through a will. The will must be in writing and signed by the testator in the presence of two witnesses.

In the case of Abdul Razak v. Mangesh AIR 1971 Bom 472, the Bombay High Court held that a Muslim can dispose of one-third of their property through a will, while the remaining two-thirds will be distributed according to the Islamic law of inheritance.

In the case of Mohammad Hafeezullah Khan v. Rizwanul Haque AIR 2011 SC 1637, the Supreme Court of India held that a Muslim can dispose of one-third of their property through a will, and the remaining two-thirds will be distributed according to the Islamic law of inheritance.

Differences between the laws: The Indian Succession Act, 1925, lays down the formalities that must be followed for a will to be considered valid, while the Hindu Succession Act, 1956, and the Muslim Personal Law (Shariat) Application Act, 1937, provide for both intestate and testamentary succession. The Hindu Succession Act, 1956, specifies the rules for the distribution of property among heirs, while the Indian Succession Act, 1925, and the Muslim Personal Law (Shariat) Application Act, 1937, do not specify any such rules.

Challenges and future developments

The Law of Wills in India faces several challenges, including a lack of awareness about the importance of wills, the increasing complexity of property rights, and the need for harmonization with other laws, such as the Hindu Succession Act, 1956. Future developments in the field may include legal reforms to address these challenges, as well as the integration of digital technology in the drafting and execution of wills.

Digital wills and electronic signatures

The emergence of digital technology has the potential to revolutionize the Law of Wills in India. The use of digital wills and electronic signatures could streamline the process of drafting and executing wills, making it more accessible and efficient for the public. However, the legal framework surrounding digital wills and electronic signatures in India is still in its nascent stages, and further legislation and judicial decisions are needed to establish their validity and enforceability.

Implications for legal practice

The Law of Wills in India has significant implications for legal practitioners. It is essential for lawyers to be well-versed in the relevant case laws and statutory provisions to provide comprehensive advice to their clients. Furthermore, legal professionals should be aware of the challenges and future developments in this field to stay informed and adapt their practice accordingly.

Estate planning

Estate planning is an essential aspect of legal practice in the area of wills and succession. Legal practitioners should emphasize the importance of having a valid will to their clients and provide guidance on drafting clear and unambiguous wills to avoid potential disputes and litigation. Additionally, lawyers should be knowledgeable about the interplay between the Law of Wills and other related laws, such as tax and family law, to provide comprehensive estate planning advice.

The Law of Wills in India is an important aspect of succession law. It provides a legal framework for individuals to ensure that their assets and property are distributed as per their wishes after their death. The Indian Succession Act, 1925, lays down the formalities that must be followed for a will to be considered valid. It also provides for the revocation of a will, the process of probate, and the revival of a will. It is important for individuals to understand the Law of Wills in India and to ensure that they have a valid will in place. The case laws provide clarity on the various aspects of the Law of Wills in India and serve as a guide for individuals who wish to make a will.

—Vishakha Sharma is a final year student of LL.B (Hons.), OP Jindal Global University