Execution of Unprivileged Wills | Family Law - CLAT PG PDF Download

Execution of Unprivileged Wills

Every testator, except for soldiers on an expedition or in actual warfare, airmen in similar situations, or mariners at sea, must follow these rules to execute their will:

(a) Signing the Will

• The testator must sign or mark the will, or someone else can sign it in the testator's presence and by their direction.

(b) Placement of Signature or Mark

• The testator’s signature or mark, or the signature of the person signing for the testator, should be placed to show the intention to make the writing a will.

(c) Attestation by Witnesses

• The will must be witnessed by two or more individuals who either saw the testator sign or mark the will, saw someone else sign it at the testator’s direction, or received a personal acknowledgment from the testator regarding the signature.
• Witnesses can sign in the testator's presence, and they do not all need to be present at the same time. There is no specific form required for attestation.

Important Notes:

• While it is natural for property to go to heirs after death, the right to execute a will is a legal privilege that is not absolute.
• If legal safeguards are not strictly followed, weak or incompetent individuals may be subjected to fraud or coercion.

Attestation and Execution of Will

• A document with registration prima facie carries a presumption of genuineness.
• Signature or mark by other persons should be done in the testator's presence and by their direction.
• Signature is usually at the end of the document.
• The will should be attested by two or more witnesses in the presence of the testator; it is not necessary for all witnesses to be present at the same time.
• Once the execution of the will is proved, the burden shifts to the objector to disprove it.

Who Can Be a Witness?

Major, of sound mind, and must sign in the presence of the testator with knowledge of the concerned document.

Sub-Registrar, scribe, or typist may also act as witnesses.

Attesting Witness

• An attesting witness is required to prove all the elements of the due execution of the will.

Suspicious Circumstances

• The testator's signature may appear shaky and doubtful.
• The mental condition of the testator could be weak.
• The dispositions made in the will might be unnatural, improbable, or unfair, suggesting they were not made of the testator's free will.
• If the proponent played a significant role in the execution of the will.
• If the testator signed blank papers.
• If there are incorrect recitals of essential facts.

Incorporation of Papers by Reference

If a testator, in a will or codicil that is properly attested, makes a reference to any other document as expressing part of their intentions, that document shall be considered as forming a part of the will or codicil.

Privileged Wills

A privileged will is a special type of will that allows certain individuals, such as soldiers, airmen, and mariners, to dispose of their property under specific circumstances.

Who Can Make a Privileged Will?

• Soldiers: Any soldier engaged in an expedition or actual warfare.
• Airmen: Any airman employed in an expedition or engaged in actual warfare.
• Mariners: Any mariner at sea.

Requirements for a Privileged Will

• The individual must be at least 18 years old.
• The will must be made in the manner provided in Section 66 of the law.

Illustrations

• (i) A medical officer attached to a regiment engaged in an expedition can make a privileged will because he is a soldier employed in such a capacity.
• (ii) A purser on a merchant ship at sea qualifies as a mariner and can also make a privileged will while at sea.

Mode of Making and Rules for Executing Privileged Wills

Privileged wills can be created either in writing or verbally. The following rules govern their execution:

(1) Writing by the Testator:

• If the will is written entirely by the testator in their own handwriting, it does not require a signature or witnesses.

(2) Writing by Another Person:

• If the will is written wholly or partially by someone else but signed by the testator, it does not need to be witnessed.
• If the will is written by another person without the testator's signature, it is considered valid if the testator directed its writing or acknowledged it as their will.

(4) Incomplete Execution:

• If the will appears incomplete but the testator's intentions are clear, it remains valid unless the incomplete execution is due to abandoning the testamentary intentions.

(5) Written Instructions:

• If a soldier, airman, or mariner provides written instructions for their will but passes away before it is executed, those instructions are considered their will.

(6) Verbal Instructions:

• If a soldier, airman, or mariner gives verbal instructions for their will in the presence of two witnesses, and these instructions are written down during their lifetime but the will is not executed before their death, the instructions are regarded as their will.

(7) Oral Wills:

• A soldier, airman, or mariner can create a will verbally by declaring their intentions in front of two witnesses simultaneously.

(8) Expiration of Oral Wills:

• A will made verbally becomes invalid one month after the testator, while still alive, is no longer entitled to make a privileged will.