B.A.LL.B. VIII SEMESTER
DRAFTING OF PLEADING & CONVEYANCING
CIDE: BL-805
TOPIC: WILL DEED
What is Will:-
A Will is a declaration. A Will is by which a living person (called testator)
declares his desires or intentions. A Will is never an agreement or
contract or settlement. It is for this reason that the beneficiaries of a Will
should not be parties to the Will.
Will is defined under section 2(h) of Indian Succession Act, 1925 as
follows:
(h) “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. It is also worthwhile to look at the definition of a codicil under
Indian Succession Act, 1925.
(b) “Codicil” means an instrument made in relation to a will, and
explaining, altering or adding to its dispositions, and shall be deemed to
form part of the will;
Clearly, a codicil is a document that is prepared in relation to an existing
will to either modify or explain or add to the provisions of the will. The
codicil becomes part of the will to which it relates and has no
independent existence.
Another term that is relevant to the discussion about wills is “Probate,”
which is defined as follows by Indian Succession Act, 1925.
(f) “Probate” means the copy of a will certified under the seal of a court
of competent jurisdiction with a grant of administration to the estate of
the testator.
Application for probate needs to be made to the appropriate court after
the death of the testator. Application for probate can be moved either by
the executor of the will or by the beneficiary/beneficiaries . If a court
, grants probate in relation to a will , all those acting on the basis of the will
have no ground to doubt the genuineness of the will.
Ingredients of Will are as follows :-
Legal declaration
Intention of testator
With respect to his/her property
Desires to be carried into effect after his/her death
Sec. 59 Persons capable of making wills
Every person of sound mind not being a minor may dispose of his
property by will.
Explanation 1 A married woman may dispose by will of any property
which she could acierate by the “own act curing her” life.
Explanation 2 Person who are deal or cumb or blind are not thereby
incapacitated for making a will if they are able to know what they do by
it.
Explanation 3 A person who is ordinarily insane may make a will during
an interval in which he is of sound mind.
Explanation 4 No person can make a will while he is in such a state of
mind, whether arising from intoxication or from illness or from any other
cause, that he does not know what he is doing.
There are only two considerations to determine capacity for making a
Will. The first is that the person should be of sound mind and the second
is that he/she should not be minor.
Drafting a Will:- There is no particular format of a will. The most
important requirement for a Will is that the intentions of the testator
should be known clearly and unambiguously from a will. Sec. 74 of Indian
Succession Act states the same in clear terms. Relevant Section reads as
follows.
DRAFTING OF PLEADING & CONVEYANCING
CIDE: BL-805
TOPIC: WILL DEED
What is Will:-
A Will is a declaration. A Will is by which a living person (called testator)
declares his desires or intentions. A Will is never an agreement or
contract or settlement. It is for this reason that the beneficiaries of a Will
should not be parties to the Will.
Will is defined under section 2(h) of Indian Succession Act, 1925 as
follows:
(h) “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. It is also worthwhile to look at the definition of a codicil under
Indian Succession Act, 1925.
(b) “Codicil” means an instrument made in relation to a will, and
explaining, altering or adding to its dispositions, and shall be deemed to
form part of the will;
Clearly, a codicil is a document that is prepared in relation to an existing
will to either modify or explain or add to the provisions of the will. The
codicil becomes part of the will to which it relates and has no
independent existence.
Another term that is relevant to the discussion about wills is “Probate,”
which is defined as follows by Indian Succession Act, 1925.
(f) “Probate” means the copy of a will certified under the seal of a court
of competent jurisdiction with a grant of administration to the estate of
the testator.
Application for probate needs to be made to the appropriate court after
the death of the testator. Application for probate can be moved either by
the executor of the will or by the beneficiary/beneficiaries . If a court
, grants probate in relation to a will , all those acting on the basis of the will
have no ground to doubt the genuineness of the will.
Ingredients of Will are as follows :-
Legal declaration
Intention of testator
With respect to his/her property
Desires to be carried into effect after his/her death
Sec. 59 Persons capable of making wills
Every person of sound mind not being a minor may dispose of his
property by will.
Explanation 1 A married woman may dispose by will of any property
which she could acierate by the “own act curing her” life.
Explanation 2 Person who are deal or cumb or blind are not thereby
incapacitated for making a will if they are able to know what they do by
it.
Explanation 3 A person who is ordinarily insane may make a will during
an interval in which he is of sound mind.
Explanation 4 No person can make a will while he is in such a state of
mind, whether arising from intoxication or from illness or from any other
cause, that he does not know what he is doing.
There are only two considerations to determine capacity for making a
Will. The first is that the person should be of sound mind and the second
is that he/she should not be minor.
Drafting a Will:- There is no particular format of a will. The most
important requirement for a Will is that the intentions of the testator
should be known clearly and unambiguously from a will. Sec. 74 of Indian
Succession Act states the same in clear terms. Relevant Section reads as
follows.
