Testamentary Document or a
testament means a document made by a person whereby he disposes of his property
but unlike a disposal inter vivo, it is unilateral and comes into effect on his
death, and therefore, the document comes into effect on the death of the
testator only.
A WILL or testament is
defined as a ‘declaration, made in accordance with the formalities required by
statute, of the intention of the person making it with regard to the matters
which he wishes to take effect upon or after his death. Until then, it is an
inchoate or ambulatory document which can be revoked, modified or substitutedby another such document.
‘WILL’ is defined in
Section 2 (1) of the Indian Succession Act, 1925 as 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’.
A will must deal with the
intention of the testator as to how his property is to be dealt after hisdeath. If such an intention is disclosed and the property is also dealt with,
it is a will, but not otherwise, by whatever name it is called, and provided it
is executed as required by the Law.
A will has no standard form
but generally the contents of a will fall under the following heads:
(1) Name, address, age,
occupation and community of the testator;
(2) Clause revoking all
previous wills and other testamentary documents;
(3) Clause appointingexecutors, and trustees.
There is no maximum limit
prescribed under Indian Law as to their number unlike English Law where the
maximum limit prescribed is four under Section 160 of the
Supreme Court of Judicature
(Consolidation) Act, 1925.
But as far as possible the
number of executors should not exceed three.
(4) Then will come the
clause mentioning specific bequests followed by two clauses:
(a) one containing general bequest; and
(b) the second containing residuary bequest.
The last one is very
necessary otherwise if any property is not generally or specifically dealt
with, the testator may be considered as having died intestate in
respect thereof.
(5) A clause is also
inserted stating that the testator is in sound health and proper state
of understanding though that clause has
not much value;
(6) The last clause is
about the testimonium and attestation;
(7 Date of the will can be given in the beginning
or at the end, the latter being the
standard practice.
So far as Muslims are
concerned, the provisions of Part VI of the Succession Act, containing Sections
57 to 191 and which deal with execution of a will, the construction of the
provisions of a will and the different types of legacies do not apply to
Muslims in India. Sections 211 and 212 of Part VI of the Succession Act also do
not apply to Muslims in India.
Therefore, so far as
matters such as power to make a will, nature of the will, execution and attestation thereof etc., are concerned, the Muslims in India are governed by
the Muslim Personal Law. Under that Law, a Muslim can make a WILL orally or in
writing and no form is required for such writing. If the Will is in writing it
need not be attested. A person who is a major and of sound mind can make a will
and he can dispose of his all or any part of his property by will. However, there are two basic restrictions on
the power of a Muslim to make a will namely:
1.a bequest to an heir is
not valid except to the extent to which the persons who are heirs of the
testator, at the time of his death, expressly or impliedly consent to the
bequest after his death; and
2.Muslim cannot dispose ofhis property to a person who is not his heir in excess of one third part thereof,
except in cases such as
(i) where such excess is
permitted by a valid custom;
(ii) where there are no
heirs of the testator;
(iii) where the heirsexisting at the time of the testator’s death have consented to such bequest after
his death; and
(iv) where the only heir is
the husband or the wife and the bequest of such excess does not affect his or
her share.
Any legacy bequeathed in
such excess will abate according to the rules of the Law.A Muslim may change
his will during his life time or cancel his legacy.A will may also become void
if the testator, after making the will, becomes of unsound mind and continues
to be so till his death.Similarly, a bequest which is contingent, or conditional
or in future or is alternative would be void.
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