I am a soldier serving in the Indian Army and a father of three children. I have not yet prepared a Will. I have been posted in a remote and sensitive area for several months. I would like to understand whether the law provides any special provisions for soldiers in such circumstances.
–Name withheld on request
In simple terms, a Will is a document by means of which the testator, i.e., the individual preparing such a Will, declares their desire with respect to the division and distribution of their estate after death. Wills can be broadly divided into Privileged Wills and Unprivileged Wills. An unprivileged Will is one that is prepared by an ordinary person in the normal course of life, which requires the signature of the testator and attestation by two independent witnesses. On the other hand, the Indian Succession Act, 1925, also considers the unusual circumstances that people of certain professions might face and thus allows a provision for Privileged Wills.
As per Section 65 of the Act, any soldier or Air Force officer (airman) who is on an expedition or engaged in actual warfare, or any mariner at sea, who has completed the age of eighteen years, may dispose of their property by a Will made in a special manner through Privileged Wills.
Section 66 of the Act throws light on the execution of Privileged Wills and states that a testator can make a Privileged Will in writing or by orally declaring their wishes before two witnesses present at the same time.
In the case of Privileged Wills written entirely by the testator, they need not be signed or attested. However, if a part of the Will has been written by someone else and has been signed by the testator, then attestation would not be mandatory.
There could also be a situation where such a Will is written wholly or in part by someone else and has not been signed by the testator. In such situations, the Will is considered valid if it can be shown that it was authored under the directions of the testator or if the testator had recognized it as their Will.
A Privileged Will, even when not complete, is valid if the non-execution can be explained by reasons other than a change of intention. Additionally, when the testator leaves behind written instructions for their Privileged Will but passes away before preparing it, such instructions are considered to constitute their Will.
Similarly, if the testator provides oral instructions in the presence of two witnesses and the same are written down during the testator’s lifetime, then the instructions are considered to constitute the testator’s Will.
The provisions for Privileged Wills are allowed only for certain people who are engaged in actual warfare or emergencies. However, it must be noted that an oral Will is temporary. When an individual survives such emergencies and returns, a Privileged Will, which is prepared orally, would expire within one month. For example, a Privileged Will prepared orally by a soldier who has returned from warfare would expire within a month of such return.
Aditya Chopra is a managing partner, and Fatima Ali is an associate at The Victoriam Legalis (TVL).
