A will 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). A codicil is an instrument made in relation to a will, explaining, altering, or adding to its dispositions, and deemed part of the will (S.2(b)). Testamentary succession is the transfer of property by means of a will it takes effect ONLY upon death.
Why: A will allows a person to control distribution of their property after death according to their own wishes (rather than intestate succession rules). It is ambulatory (revocable until death) and speaks from the date of death (not execution).
Legal Framework
| Provision | Subject |
|---|---|
| S.2(h) | Will defined |
| S.2(b) | Codicil defined |
| S.59 | Capacity to make a will: every person of sound mind, not a minor |
| S.63 | Execution: signed by testator + attested by 2 witnesses |
| S.70 | Will revocable at any time during testator's life |
| S.71 | Revocation: by later will/codicil, or by destruction |
| S.74 | Will obtains no validity from being deposited with agent |
| S.118 | Bequest to attesting witness: void |
| S.112 | Bequest to unborn person (vests when born) |
Essential Features of a Will
| Feature | Explanation |
|---|---|
| Testamentary intention | Must intend disposition of property AFTER death |
| Voluntary | Free from coercion, undue influence, fraud |
| Revocable | Can be revoked any number of times until death (S.70) |
| Operative only after death | No interest passes during testator's lifetime |
| Ambulatory | "Speaks from death" covers property owned at death, not just at execution |
| No consideration | Purely gratuitous; beneficiaries give nothing |
Capacity to Make a Will (S.59)
| Who CAN make a will | Who CANNOT |
|---|---|
| Any person of sound mind | Minor (below 18) |
| Person of any religion (for non-Muslim Indians under ISA) | Person of unsound mind (at time of execution) |
| Married woman (own property) | Person under intoxication (at time of execution) |
| Blind/illiterate (with proper safeguards) | Person under duress/undue influence |
| Hindu, Christian, Parsi, Sikh | Muslim (governed by Muslim personal law, NOT ISA) |
Note: A person who is generally of unsound mind can make a will during a lucid interval (S.59 explanation).
Execution of Will (S.63)
| Requirement | Detail |
|---|---|
| Written | Must be in writing (any language, any material) |
| Signed by testator | Or by some other person in his presence and by his direction |
| Signature placement | At foot/end of will, or so placed that it appears intended to give effect |
| Attested by 2+ witnesses | Each witness must: (a) see the testator sign or acknowledge signature, AND (b) sign the will in testator's presence |
| No registration required | Will need not be registered (optional under S.18 Registration Act) |
| No stamp duty | Wills are exempt from stamp duty |
Why (2 witnesses): Attestation prevents: (a) forgery, (b) undue influence without detection, (c) disputes about testator's intention. Two witnesses who SAW the testator sign (or acknowledge) provide independent corroboration.
Codicil (S.2(b))
A codicil is a supplement to a will. It:
- Explains, alters, or adds to the will's dispositions
- Must be executed with the same formalities as a will (S.63)
- Is deemed PART of the will (read together)
- Does NOT revoke the original will (only modifies specific parts)
Example: Will says "I give my house to A." Later codicil says "I change: house to B instead of A." The codicil revokes only the specific bequest; rest of the will stands.
Revocation (S.70-72)
| Mode | Section | Explanation |
|---|---|---|
| By later will or codicil | S.70 | New will expressly or impliedly revokes the earlier |
| By destruction | S.70 | Burning, tearing, or otherwise destroying with intent to revoke |
| By marriage (Christians/Parsis) | S.69 | Marriage revokes prior will (not applicable to Hindus) |
| Implied revocation | S.70 | Later will inconsistent with earlier → earlier revoked to extent of inconsistency |
Nature of Bequests
| Type | Description |
|---|---|
| Specific bequest | Identifiable item: "my house at Plot 5, Jubilee Hills" |
| General bequest | From general estate: "Rs. 5 lakhs to my nephew" |
| Demonstrative bequest | General amount from specific fund: "Rs. 5 lakhs from my FD in SBI" |
| Residuary bequest | Whatever remains after specific/general bequests |
| Conditional bequest | Subject to condition (condition precedent/subsequent rules apply) |
| Contingent bequest | Dependent on uncertain event |
Recall Check
- What formalities does S.63 require for valid execution of a will?
- Can a will be revoked? If so, how?
- What is the difference between a will and a codicil?
Key Cases
Venkatamahipathi v. Subba Rao (1946) Venkatamahipathi-v-Subba-Rao-1946 Issue: Whether a will must be signed at the foot/end, or whether placement elsewhere is acceptable. Rule: S.63 requires the testator's signature to appear in such a position that it appears they intended to give effect to the writing as their will. Strict foot-rule not mandatory. Held: The signature need not be at the physical bottom of the document. If placed such that it validates the contents above it, it is sufficient. The court examines whether the testator intended the signature to authenticate the entire document.
Distinctions
| Basis | Will (testamentary) | Gift inter vivos (S.122 TPA) |
|---|---|---|
| When effective | After death only | During donor's lifetime |
| Revocability | Freely revocable until death (S.70) | Irrevocable once accepted |
| Acceptance | Not required during testator's life | Required during donor's lifetime |
| Registration | Optional | Mandatory for immoveable property |
| Consideration | None | None (same) |
| Property covered | Property owned at DEATH (ambulatory) | Property owned at DATE OF GIFT only |
| Stamp duty | Exempt | Applicable |
| Attestation | 2 witnesses mandatory (S.63) | 2 witnesses mandatory (S.123 TPA) |
| Basis | Will | Codicil |
|---|---|---|
| Nature | Original testamentary document | Supplement/amendment to will |
| Independence | Stands alone | Must relate to an existing will |
| Effect | Disposes of entire estate (potentially) | Only modifies/adds specific provisions |
| Formalities | S.63 (signed + 2 witnesses) | Same as will (S.63) |
| Revocation | Revokes any earlier will (if so stated) | Does NOT revoke the will; only modifies |
Flashcards
Q: How does S.2(h) define a will? A: 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.
Q: What is a codicil? A: An instrument made in relation to a will, explaining, altering, or adding to its dispositions, deemed to be part of the will (S.2(b)).
Q: What are the execution requirements under S.63? A: (1) Written, (2) Signed by testator (or by another in his presence and direction), (3) Attested by 2+ witnesses who each saw testator sign and signed in testator's presence.
Q: Is registration of a will mandatory? A: No. Registration is optional (S.18 Registration Act). An unregistered will is fully valid if S.63 formalities are met.
Q: When does a will take effect? A: Only upon the testator's death. No interest passes during the testator's lifetime. The will is ambulatory and revocable until death.
Q: Who lacks capacity to make a will (S.59)? A: Minors and persons of unsound mind (at the time of execution). A person of unsound mind can make a valid will during a lucid interval.
Q: How can a will be revoked? A: By a later will/codicil, or by intentional destruction (burning, tearing) with intent to revoke (S.70-71).
Exam Scenario
T executes a will in 2020 leaving his house to A. In 2022, T executes a codicil: "I add: my car (purchased in 2021) shall go to B." In 2024, T executes a second will: "All my property to C." T dies in 2025. What is the effect on A, B, and C?
Approach: (1) 2020 Will: house to A. (2) 2022 Codicil: car to B. The codicil supplements the 2020 will; does not revoke it. Combined effect: house to A + car to B. (3) 2024 Will: "All my property to C." This is a LATER will that impliedly revokes the 2020 will and 2022 codicil to the extent of inconsistency. "All my property to C" is totally inconsistent with "house to A" and "car to B." (4) Under S.70: the later will revokes the earlier. (5) Result: C gets everything (house + car + residue). A and B get nothing. (6) Had the 2024 will said "My bank deposits to C" (not "all property"), only bank deposits would go to C. The house (to A) and car (to B) would survive because no inconsistency with specific bequests.