Testamentary Succession — Wills — KSLU Family Law 1 Notes

Testamentary Succession — Wills

Ancient Hindu law did not let a person Will away ancestral (coparcenary) property — it belonged to the family, not the individual. By the 18th century courts recognised a Hindu’s right to Will his self-acquired property; today, Sections 30 and 6(1), HSA 1956 also let him Will his notional share in coparcenary property.

A Will (Vasiyatnama) is “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” (S.2(h), Indian Succession Act, 1925). Wills made by Hindus are governed by the Indian Succession Act, 1925. A Hindu may freely Will his separate/self-acquired property and his notional share of coparcenary property (S.30, HSA) — but cannot Will the coparcenary property as a whole, since it belongs to all coparceners jointly.

Essentials of a valid Will: testamentary capacity (sound mind, 18+ years), a voluntary act free of fraud/coercion/undue influence, in writing (oral declarations don’t count for ordinary Wills), signed by the testator (or by another in his presence and at his direction), and attested by two witnesses present simultaneously — if a witness is also a beneficiary, the Will survives but the bequest to that witness fails. Privileged Wills (S.66, ISA 1925) relax these formalities for soldiers, sailors and airmen on active duty, who may make oral or unattested Wills. A Will is ambulatory — it speaks only from death and can be changed any time during the testator’s life — and is revoked by a later Will, marriage (in limited contexts), or destruction with intent to revoke.

Case laws: Ishwardeo Narayan Singh v. Kamta Devi (1954) — registration is not compulsory for a valid Will; Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) — both attesting witnesses must be present together when the testator signs.