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 substituted by 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 his death. 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 appointing executors, 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 of his 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 heirs existing 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.