By Shantam Sharma and Ritvik Kashyap
Introduction
A Will serves as a vital legal document that reflects a person’s final wishes regarding the distribution of their assets and property after their demise. While the concept of a Will is simple, the laws governing its execution and recognition are nuanced, catering to diverse circumstances and individuals. The Indian Succession Act, 1925, provides detailed provisions for drafting and executing Wills, distinguishing between those made under ordinary situations and those created in extraordinary conditions. These distinctions highlight the adaptability of the legal framework, accommodating both routine scenarios and exceptional circumstances where formalities might not be feasible. This article delves into the legal requirement for executing privilege and unprivileged Wills and the difference between the two.
What are Privileged and Unprivileged Wills?
- Privileged Wills[1]
As per Section 65 of the Indian Succession Act, 1925[2], “Privileged Wills” refer to Wills made by specific individuals under exceptional circumstances. This category includes soldiers involved in expeditions or active combat, airmen engaged in similar operations, and mariners at sea, provided they are at least eighteen years old. - Unprivileged Wills
Wills that do not meet the criteria for Privileged Wills are categorized as “Unprivileged Wills”. These refer to the standard Wills made by individuals who are not in the military or maritime service[3].
Difference between Privileged and Unprivileged Will
While both privileged and unprivileged Wills serve the same ultimate purpose of distributing a person’s assets after their death, they differ significantly in their execution requirements and the circumstances under which they can be made. Below is a comparison of the key differences between privileged and unprivileged Wills based on their legal formalities.
| Aspect | Privileged Will | Unprivileged Will |
| Applicability | Applicable to members of the armed forces, air force, and mariners while on expedition, in actual service, or under exceptional circumstances. | Applicable to all individuals not covered under privileged status. |
| Signature Requirement | The testator’s signature or mark is not mandatory. | The testator must sign, affix their mark, or direct someone else to sign the will in their presence. |
| Witness Requirement | Does not require witnesses for execution, except in cases of verbal wills. | Requires at least two witnesses to attest the will. |
| Witness Presence | Verbal wills require two witnesses present at the same time. | Witnesses do not need to be present simultaneously but must sign in the presence of the testator. |
| Preparation | Can be written by the testator, another person, or declared verbally in specific circumstances. | Must be written and signed, with no verbal wills allowed. |
| Attestation Formalities | Minimal or no attestation required for privileged wills. | Formal attestation by witnesses is mandatory to validate the will. |
| Legal Effect of Incomplete Wills | Incomplete privileged wills may still be valid if the intention is clear and the incompleteness is due to unavoidable reasons. | An incomplete unprivileged will is invalid unless all formalities are fulfilled. |
| Applicability of Verbal Instructions | Verbal instructions or word-of-mouth wills are valid if done in the presence of two witnesses. | Verbal instructions are not recognized as a valid will. |
Execution of Privileged Wills
The execution of privileged wills is governed by Section 66 of the Indian Succession Act, 1925[4], which prescribes the following rules:
| Handwritten Will by Testator | It does not need to be witnessed |
| Written by Someone Else and Signed by Testator | It does not need to be witnessed. |
| Written by Someone Else Without Signature | Valid if it can be shown that the testator either gave directions for it to be written or accepted it as their Will. |
| Incomplete Will | Valid as long as the incomplete execution can be reasonably explained. |
| Written Instructions for a Will | Those instructions will be considered their Will. |
| Verbal Instructions with Witnesses | Valid, if these were written down during their lifetime in front of two witnesses. |
| Oral Will | Valid, if made verbally in front of two witnesses |
| Validity of Oral Will | Invalid one month after the testator stops being in a Privileged WIll. |
Execution of Unprivileged Wills
The execution of unprivileged Wills is governed by Section 63 of the Indian Succession Act, 1925[5], which prescribes the following rules:
| Testator’s Signature or Mark | Will requires testator’s signature |
| Placement of Signature or Mark | Placed in a way that clearly shows the testator intent. |
| Witnesses | Presence of at least two witnesses necessary |
| Witnesses’ Signatures | Witnesses must sign the Will in the testator’s presence. |
| No Specific Format | No strict or particular format required for the attestation of the Will. |
Conclusion
In conclusion, a Will is a crucial legal document that ensures an individual’s assets and wishes are respected after their passing. While the process of creating a Will may seem straightforward, the legal requirements and formalities involved are designed to accommodate various circumstances and ensure fairness in the distribution of assets. The provisions under the Indian Succession Act, 1925, reflect this flexibility, allowing individuals to draft their Wills in a manner that suits their particular situation, whether in ordinary or extraordinary conditions.
Ultimately, the legal framework governing Wills serves to protect the testator’s intentions, ensuring that their final wishes are carried out in a manner that is both fair and just. Furthermore, by recognizing diverse methods of execution, the law provides individuals with the security that their Will remains valid, even when faced with extraordinary circumstances.
[1]Available at; https://ssrana.in/articles/understanding-the-concept-of-will (Understanding the Concept of Wills)
[2] Privileged Wills, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879§ionId=33574§ionno=65&orderno=65&orgactid=AC_CEN_3_20_00058_192539_1523349789879
[3]Section 63 of the Indian Succession Act, 1963, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879§ionId=33572§ionno=63&orderno=63&orgactid=AC_CEN_3_20_00058_192539_1523349789879
[4]Mode of making, and rules for executing, privileged wills, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879&orderno=66&orgactid=AC_CEN_3_20_00058_192539_1523349789879
[5]Execution of unprivileged wills, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879§ionId=33572§ionno=63&orderno=63&orgactid=AC_CEN_3_20_00058_192539_1523349789879