Testamentary Succession — Wills — Hindu Law (Family Law I) Notes

Testamentary Succession — Wills

Under ancient Hindu law, a person could not ordinarily Will away ancestral (coparcenary) property — such property belonged to the family, not to the individual. But by the 18th century, courts recognised a Hindu’s right to Will away his self-acquired property. Today, Sections 30 and 6(1) of the HSA 1956 clarify that a Hindu can Will away his notional share in coparcenary property as well.

What is a Will?

A Will (also called a Testament or Vasiyatnama) is a legal document in which a person (testator) expresses his/her wishes for the distribution of property after death.

Section 2(h), Indian Succession Act, 1925: “‘Will’ means 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.”

Governing Law: Wills by Hindus are governed by the Indian Succession Act, 1925 (Sections 57–190 and applicable parts). A Hindu may make a Will of:

• His separate/self-acquired property — freely.
• His notional share in coparcenary property — under Section 30, HSA 1956.

A Hindu cannot Will: The coparcenary property as a whole (it belongs to all coparceners). He can only Will his individual share.

Essentials of a Valid Will

1. Testamentary capacity: The testator must be of sound mind and a major (18+ years).
2. Voluntary: No fraud, coercion, or undue influence.
3. In writing: A Will must be in writing (spoken words are not valid).
4. Signed by testator or by someone in his presence at his direction.
5. Attested by two witnesses who must be present simultaneously.
6. Witnesses must not be beneficiaries (if they are, the bequest to them fails but the Will itself is valid).

Privileged Wills (S.66, Indian Succession Act, 1925)

Soldiers, sailors, and airmen on active duty may make oral Wills or unattested written Wills — these are called “privileged wills.”

Revocation of a Will

A Will is ambulatory [speaks from death, can be changed at any time during life]. It is revoked by:

• A subsequent Will revoking the earlier one.
• Marriage of the testator (not applicable to Hindus post-HMA 1955 for Hindus).
• Destruction of the Will with intent to revoke.

Case Laws

• Ishwardeo Narayan Singh v. Kamta Devi (1954) — A Will is valid even without registration; registration is not compulsory for movable or immovable property.
• Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) — Both attesting witnesses must be present simultaneously when the testator signs.

📋 16-MARK ESSAY BLUEPRINT (Will)

• STAGE 1 ──► Hook + Roadmap: Open with the evolution — ancient limitation on willing ancestral property; today S.30, HSA. State you will cover definition, governing law, essentials, and revocation.
• STAGE 2 ──► Definition and governing law: Quote S.2(h), Indian Succession Act 1925. Which property can a Hindu Will?
• STAGE 3 ──► Essentials: Six essentials — capacity, voluntary, written, signed, attested by 2 witnesses, witnesses not beneficiaries.
• STAGE 4 ──► Privileged Wills (S.66): Soldiers/sailors/airmen — oral will valid on active duty.
• STAGE 5 ──► Revocation and verdict: Will is ambulatory; revoked by subsequent will or destruction. Close with Janki Narayan Bhoir.

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