Testator

A Will is a document. Somebody has to write it. That person is the testator.

Section 2(h) of the Indian Succession Act, 1925 defines the Will. It is the legal declaration of what the testator intends for his property, to be carried into effect after his death.

So the testator is the author of that declaration. His rights reach only as far as what is legally his own.

Three things follow, and they are most of what the term carries.

First, the Will does nothing while he lives. It takes effect only after his death.

Second, he can change his mind. He may alter or revoke the Will at any time, so long as he is competent to dispose of his property.

Third, it stays private. Until it is executed, the Will remains a confidential document.

A testator is not an executor. The testator writes the Will. The executor carries it out. Nor is he a legatee, who is the person named to receive something under it.

What the testator can do through a Will. Section 15.2.1 lists four jobs: dispose of properties, appoint executors, create trusts, and appoint a guardian of the children. A testamentary trust and a testamentary guardian both exist because a testator chose to use two of those four.

Who may be a testator. Section 59 of the Indian Succession Act sets the essentials for making a Will: testamentary capacity and sound mind, knowledge of contents, freedom from undue influence, fraud or coercion, and a voluntary act. Section 15.2.3 then lists who is eligible:

Nobody may make a Will while not in a sound state of mind, whether through intoxication, illness or any other cause that leaves him not knowing what he is doing.

Why the workbook says a testator should bother. Section 15.2.1 gives six reasons. No confusion among family members after his death. A highly personal document in which he can express his opinions and feelings. The power to address specific family situations — special needs, minor children, a widowed daughter — which the laws of inheritance ignore. The power to take away the rights of a disobedient or fraudulent family member. Tax advantages in many situations. And, by appointing an executor, a faithful person of his own choosing: in intestacy the administrators have to provide an administration bond and securities for due administration of the estate.

Revoking it. Section 62 lays down that a Will is liable to be revoked or altered by the maker at any time during his lifetime when he is competent to dispose of the Will. Section 15.2.5 gives four modes of revocation:

1. through a later Will or codicil duly executed;
2. through a written declaration of an intention to revoke, itself duly executed as a Will;
3. by burning, tearing or otherwise destroying the Will, by the testator or by someone in his presence and at his direction, with the intention of revoking it;
4. by a subsequent marriage.

And two things that are not revocation. The mere loss of a Will does not revoke it — but where it is destroyed by the testator, or with his privity or approbation, it is deemed revoked. A mere expression of an intention to revoke at some future date is not valid. Section 70 requires that a document declaring the intention to revoke be executed in the same manner as a Will.

Two statements on marriage, side by side. Mode (4) above says a subsequent marriage revokes a Will. The same section then records that Section 57 specifically mentions that marriage shall not revoke any Will or codicil for Hindus, and that a Will is not deemed revoked on the divorce of its maker. The workbook sets both statements down in section 15.2.5 without reconciling them, so read which one a question is asking about.

Registration is optional. Section 17 of the Registration Act, 1908 does not make registration of a Will compulsory, and Section 18 makes it optional, so an unregistered Will is a genuine Will. A Will is registered on plain paper, so no stamp duty is payable. The testator and all the witnesses must attest before the Registrar or Sub-registrar; one copy goes to the testator and the rest stay in safe custody. The Registrar may be asked to visit the testator's house or hospital, and three categories are exempt from attending the office: a person unable to attend without risk or serious inconvenience through bodily infirmity, a person in jail under civil or criminal process, and a Muslim pardanashin woman.

The two deadlines a testator can miss. For a bequest to a charitable or religious institution by a non-Hindu, the Will must be deposited with the Registrar or Sub-registrar within 6 months of its execution, and the testator must survive for 12 months starting from the month in which the Will is executed. The workbook spells out the consequence: a bequest made a few days before the testator's death is not considered valid.

Illustrative figures; the workbook states these rules without a worked example.

Mr Bhagat, aged 71 and of sound mind, owns a flat in Pune worth Rs 1,40,00,000, mutual fund units worth Rs 35,00,000 and a bank balance of Rs 8,00,000. He also lives in a second flat that belongs to his brother.

What he can and cannot put in the Will. Rs 1,83,00,000 of assets are his own, so all of it can be dealt with. The brother's flat cannot — a testator's rights extend only to what is legally his own, however long he has lived there.

He uses three of the Will's four jobs. He disposes of the property, appoints his daughter as executor, and creates a testamentary trust holding Rs 35,00,000 of units for a grandson with a disability.

He then changes his mind twice.

Note what the registration did not buy him: subsequent Wills and amendments need not be registered.

And one deadline he nearly misses. In Year 5 he decides to leave Rs 10,00,000 to a religious institution. He is not a Hindu, so two conditions apply. The Will has to be deposited with the Sub-registrar within 6 months of execution — he does it in month 4. And he has to survive 12 months from the month of execution. He dies in month 14, so the bequest stands. Had he died in month 9, the Rs 10,00,000 bequest would not have been valid, and that sum would have fallen back into the rest of his estate.

Chapter 15 (Tools for Estate Planning) is built around the testator. Section 15.2.1 gives the Section 2(h) definition, names the testator, legatee and executor, and lists the reasons for writing a Will. Section 15.2.3 gives the Section 59 essentials and who is eligible to make a Will. Section 15.2.4 covers optional registration and the 6-month and 12-month conditions for a charitable bequest by a non-Hindu. Section 15.2.5 gives Section 62, the four modes of revocation, Section 57 on marriage, and Section 70.

The module-end questions put it as directly as it can be put: question 7 asks what a person who prepares the Will is called, with Testator as the answer against Deceased and Executor. Question 8 asks which instrument alters a Will — the codicil. Expect matching questions on the testator, executor and legatee, and a question on who is eligible to make a Will, where the deaf, dumb or blind person and the insane person in a lucid interval are the options candidates get wrong.

• Testator, executor, legatee — three different people. The testator writes the Will, the executor administers the estate, the legatee receives under it. The module-end question offers Executor as a wrong answer to "who prepares the Will".
• A testator can only will what is legally his own. Property he occupies, manages or holds for someone else is not his to dispose of.
• An insane person can make a valid Will during a lucid interval, and a deaf, dumb or blind person can make one if able to know what they are doing. The blanket answer "only a person of sound mind" misses both, and the only flat bar in the list is being a minor.
• The workbook gives marriage twice, in opposite directions. A subsequent marriage is listed as the fourth mode of revocation, while Section 57 says marriage shall not revoke a Will or codicil for Hindus. Both are in section 15.2.5.
• Divorce does not revoke a Will. The workbook states this separately from marriage.
• Mere loss is not revocation; destruction by or for the testator is. The distinction is intention, not the missing paper.
• An intention to revoke "later" is worthless. Section 70 requires a revoking document to be executed in the same manner as a Will.
• Registration is optional and an unregistered Will is genuine. Sections 17 and 18 of the Registration Act, 1908. And a registered Will carries no stamp duty, because it is registered on plain paper.
• 6 months and 12 months are two different clocks, both for a charitable or religious bequest by a non-Hindu: 6 months from execution to deposit the Will, 12 months of survival from the month of execution.
• A codicil is for minor alterations only. Where the changes are considerable the workbook says to write a fresh Will revoking the earlier ones.