Will and Gift

I.VEDHAGIRINATH
131901075
Indian Succession Act, 1925 - (Will)

 Will means a legal declaration of the intention of a testator with respect to his property, which he
desires to be carried into effect after his death.
Will is a testamentary document. A will declares the person's intention to be performed after his
death. Hence it will take effect only from the date of the testator. Section 2(h) defines will. A legal
declaration of the intention of a testator with respect to his property, which he desires to be carried
into effect after his death.

Will is a type of legal document used to transfer the property of a person after death as per his/her
wishes. The importance of Will cannot be stressed enough as lakhs of civil cases are pending before
various Courts for resolving inheritance disputes. Further, all Wills are revocable at any time during
the life of the person and is a confidential document. Hence, it is important for everyone to know
about the benefits of having a Will and create a Will.
Essential characteristics of a will

 Legal declaration by the maker

 According to Section 59 every person of sound mind not being a minor may dispose of
his property by will. Codicil means addition or supplement. It modifies a will. Codicil is
an instrument dame in relation will and explaining, altering or adding to its dispositions.
Sometimes the maker of a will may prefer to alter or amend the will executed by him.
Law permits the maker to make alterations to the will.
Kinds of will

 Sham will
 Helograph will
 Nungupative will
 Conditional will
 Contigent will
 Privileged will
 Unprivileged will
Unprivileged Will

 Will created by a person who is not a soldier employed in an expedition or engaged in actual
warfare or a mariner at sea is known as an unprivileged Will. For an unprivileged Will to be
valid, it must satisfy the following conditions:
 The person creating the Will must sign or affix his/her mark to the Will. Else, some other
person should sign as per the directions of the testator (Person creating the Will) in his/her
presence.
 The signature or mark of the testator or the signature of the person signing for the testator
must be placed so that it appears that it was intended to give effect to the writing as Will.
 The two or more witnesses should attest to the will. The witnesses must have seen the
testator sign or affix his mark to the Will or has seen some other people sign the Will, in the
presence and by the direction of the testator.
Privileged Will

Privileged Wills are Wills that may be in writing or made by word of mouth by those in active services like a soldier,
airman or mariner. The legal requirement for the validity of a privileged Will has been reduced to enable certain persons
to quickly make a Will. The following conditions are applicable for a privileged Will:
The testator writes the whole will with his own hand. In such a case, it need not be signed or attested.
The testator should sign the privileged Will written wholly or in part by another person. In such a case, there is no
requirement for attestation.
A Will written wholly or partly by another person and not signed by the testator is a valid Will if it is proved that it was
written by the testator’s directions or that the testator recognized it as his/her Will.
A half-completed privileged Will is also considered valid if it is proved that non-execution was due to some other reason
and does not appear to be an abandonment of intentions to create a Will.
 A privileged Will can be made by word of mouth by declaring intentions.
If a soldier or airman or mariner has given written or verbal instruction for the preparation of a Will but has died before it
could be prepared and executed. And such will is a valid Will.
Conditional or Contingent Wills
& Joint Wills

 A Will can be expressed to take effect only in the event of satisfying certain conditions or
can be contingent upon other factors. Such a Will, which is valid only in the event of the
happening of some contingency or condition, and if the contingency does not happen or
the condition fails, is called a conditional or contingent Will.
 Joint Will is a type of Will wherein two or more persons agree to make a conjoint Will. If
a Joint Will intends to take effect after the death of both persons, then it would not be
enforceable during the life-time of either. The person at any time during the joint lives or
after the death of one can revoke the joint will.
Concurrent Wills, Mutual Wills
&Duplicate Wills

 Concurrent Wills are written by one person wherein two or more Wills provide
instructions for disposal of property for the sake of convenience. For instance, one Will
could deal with the disposal of all immovable property whereas another Will deals with
the disposal of all movable property.
 In a Mutual Will, the testators confer upon each other reciprocal benefits. A husband and
wife will execute a mutual will to pass on all benefits to the other person during their
lifetime.
  The testator will create a duplicate will for the sake of safety or safekeeping with a bank
or executor or trustee. However, if the testator destroys the Will in his/her custody, then
the other Will is also considered revoked.
Sham Wills & Holograph Wills

 Sham Wills are executed but held invalid if the testator does not intend to execute as per
his/her wishes. As per the Indian Succession Act, a Will made by fraud or coercion or by
taking away the free agency of the testator is considered invalid.
 The testator writes this holograph wills entirely in its own handwriting.
 Gift (Hiba)
 The meaning of Hiba is gift. Hiba is a transfer of property made immediately without any exchange by one person to another and
accepted by or on behalf of the later.

 Donor:
 The maker or founder of the gift.

 Donee:
 One who receives the property or gift or he is beneficiary.

 Gift to unborn person:

 Declaration of gift by the donors

 Conditional Gift
 Future Gift
 Contingent Gift
Conditional Gift & Future Gift

 X is the donor gives the immovable property. Y is done he gave conditions to enjoy the
property during his life time, but no right to mortgage or lease or to sell this. This gift is
totally invalid.

 X donor gave agriculture property to Y donee. Its act of god. Its invalid.
Contingent Gift: May or may not happen. On the happening of the specified event.
Illustration: i. If I die it's yours ii. If you die it's mine. If the gift is like this then it's
invalid.
Exceptions

 Delivery of possession immediately is not necessary;

 Guardian (in case of minor)


Every Muslim of sound mind and not a minor may dispose of his property by gift. For the
purposes of gift' the age of majority of the donor is determined by the Indian Majority Act,
1875. According to this Act every minor who has attained the age of 18 years becomes major
unless the superintendence of his property has been assumed by the Court of Wards, in which
case a minor becomes a major on completion of 21 years of age and not before.

Under the Muslim Law it is immaterial whether the donor is a man or a married woman.
Hence she has the same right to make a gift as a man, and marriage does not impose any
disabilities provided that the subject- matter of the gift is one over which she possesses
absolute domination or right. Besides the donor being a major and of sound mind, it is further
essential that he (donor) should have ownership of the subject matter of the disposition.
Essentials of a valid gift

 Every Mohammedan of sound mind who has attained the age of puberty may make a
valid gift. A gift, as distinguished from a will, may be made of the whole of the property,
and it may be made even to an heir. It may be made orally or in writing. Even registration
is not necessary.

The provision of Section 123 of the Transfer of Property Act, which provides that a gift
of immovable property must be effected by a registered instrument, signed by the donor
and attested by at least two witnesses, and that a gift of movable property may be
effected either by a registered instrument as aforesaid or by delivery do not apply.
The essentials of a valid gift are:

 That there must be a clear and unambiguous intention to make a gift by the donor. Where
there is no real bona fide intention to make a gift, the gift will be void. In Qamar Uddin v.
(Mst) Hassan Jan, (1934), 16 Lah. 629, a gift of house was made by the donor to the donee
without delivering the title deeds; no mutation of name was effected and the donor continued
to pay the house tax, it was held that the gift could not be said to be complete and valid as all
the requirements of Muslim law had not been fulfilled.

 That there must be an acceptance of the gift express or implied, by or on behalf of the donee.

 That there must be delivery of possession of the subject of the gift by the donor to the donee.
Delivery of Possession

 Under the Mohammedan Law it is absolutely essential for a valid gift that there should be a delivery of such possession as
the subject of the gift is susceptible. The importance of delivery of possession has been stressed by their Lordships of the
 Privy Council in Mohammad v. Fakir Jahan
 (1922) 49 I.A. 195, where they observed. The taking of possession of the subject- matter of the gift by the donee either
actually or constructively is necessary to complete a gift.

Registration of a deed of gift does not cure the want of delivery of possession. A recital in the deed of gift that possession
has been given to a minor nephew without the intervention of a father or a guardian was, on the facts, held to be
insufficient to support a gift as against the heirs of the donor.

 Jumman v. Husain
 (1931) 129 I.C. The real test of delivery possession is to see whether the donor, or the donee reaps the benefit; if the
former is the case, possession is not transferred and if latter, it is transferred, and the gift is complete as the donee is
permitted directly or indirectly to receive the benefit.
Thank You