Rules of in­her­i­tance in the forces

A will ex­e­cuted by a sol­dier, air­man or mariner un­der cer­tain cir­cum­stances is known as a priv­i­leged will. Such wills re­quire no at­tes­ta­tion

HT Estates - - HTESTATES - Su­nil Tyagi

Rules gov­ern­ing suc­ces­sion and in­her­i­tance fall broadly un­der two cat­e­gories – tes­ta­men­tary suc­ces­sion and in­tes­tate suc­ces­sion. An in­di­vid­ual is said to die in­tes­tate if he does not leave a will. In such a case, his prop­er­ties will be dis­trib­uted amongst his le­gal heirs in ac­cor­dance with the per­sonal law ap­pli­ca­ble to him.

On the other hand, tes­ta­men­tary suc­ces­sion refers to the dis­tri­bu­tion of an in­di­vid­ual’s prop­er­ties as per his de­sire as stated in his last will. In In­dia, tes­ta­men­tary suc­ces­sion is gov­erned by the In­dian Suc­ces­sion Act, 1925 (Act). For smooth dis­tri­bu­tion of the prop­er­ties of the de­ceased, it is im­por­tant to bear in mind le­gal­i­ties that en­sure va­lid­ity of a will.

A will is es­sen­tially a le­gal dec­la­ra­tion of one’s in­ten­tion with re­spect to suc­ces­sion of one’s prop­er­ties after one’s death. Un­der nor­mal cir­cum- stances for a will to be valid, the tes­ta­tor (per­son writ­ing the will) must be a ma­jor (ie, above 18 years), of sound mind and ca­pa­ble of ex­er­cis­ing his free will and judg­ment. The tes­ta­tor must ex­e­cute and sign his will in the pres­ence of at least two wit­nesses, who in turn must at­test /sign the will in the pres­ence of the tes­ta­tor.

How­ever, as an ex­emp­tion to this gen­eral rule, in cer­tain cases, a will ex­e­cuted by a sol­dier, air­man or a mariner em­ployed in an ex­pe­di­tion or en­gaged in ac­tual war­fare, is valid even if it does not ful­fill the es­sen­tial cri­te­ria of an or­di­nary will, and such wills are called priv­i­leged wills. The fol­low­ing wills falls in the cat­e­gory of priv­i­leged wills:

A will writ­ten by such sol­dier, air man or a mariner shall be valid even if it is not signed or at­tested by the wit­nesses. Fur­ther, where the will is writ­ten by another per­son on be­half of such sol­dier, air­man or a mariner, but signed by him, then no at­tes­ta­tion is re­quired. Also in cases where such will is not signed but it can be shown that the will was writ­ten on his in­struc­tions or that he recog­nises it as his will, such will shall be valid. In the event of a sol­dier, air­man or a mariner writ­ing in­struc­tions or giv­ing ver­bal in­struc­tions for prepa­ra­tion of his will in the pres­ence of two wit­nesses and such in­struc­tions be­ing writ­ten in his lifetime, his in­struc­tions shall then con­sti­tute his will even if he dies prior to prepa­ra­tion of the will. Such a sol­dier, air­man or a mariner may also make a will by word of mouth in the pres­ence of two wit­nesses at the same time.

Such priv­i­leged per­sons can en­sure valid dis­tri­bu­tion of their prop­er­ties as per the terms stated in their wills even if such wills do not ful­fill es­sen­tial re­quire­ment of an or­di­nary will.

It is per­ti­nent to note here that the ben­e­fits of a priv­i­leged will are ap­pli­ca­ble to Hin­dus, Bud­dhists, Sikhs and Jains. The Law Com­mis­sion of In­dia, in its 110th re­port on the In­dian Suc­ces­sion Act, 1925 pointed out that “at present, the ca­pac­ity of sol­diers pro­fess­ing the Hindu, etc re­li­gion to make wills has be­come ex­tremely doubt­ful”. It fur­ther pointed out, “There is no re­ported case dis­cussing the ap­pli­ca­bil­ity or non-ap­pli­ca­bil­ity of the sec­tion to sol­diers who be­long to the ex­empted cat­e­gories, in­clud­ing, in par­tic­u­lar, Hin­dus.”

I n i t s re por t , t he Law Com­mis­sion rec­om­mended that it is nec­es­sary to ex­tend Sec­tion 65 of the Act to Hin­dus etc by amending Third Sched­ule to the Act.

FILE PHOTO

In cer­tain cases, a will ex­e­cuted by a sol­dier, air­man or a mariner em­ployed in an ex­pe­di­tion or en­gaged in ac­tual war­fare, is valid even if it does not ful­fill the es­sen­tial cri­te­ria of an or­di­nary will

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