Understanding Privileged Wills: A Comprehensive Guide

Overview

A “Will” or “Testament” is a legal document by which a person, known as the ‘testator,’ expresses how their movable or immovable property should be transferred or distributed upon their death.

In the realm of wills, there exists a distinctive category known as “Privileged Wills,” primarily applicable to members of the Armed Forces. In this blog, we will delve into the nuances of Privileged Wills, exploring their definition, benefits, execution process, and relevant legal provisions.

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What Is a Privileged Will?

A Privileged Will is a special type of will that can be made by members of the Armed Forces engaged in actual warfare or employed in specific military expeditions. Unlike conventional wills, the formalities associated with Privileged Wills are somewhat relaxed due to the unique circumstances and exigencies faced by military personnel. In India, these cases are governed by the Succession Act of 1925.

Benefits of Privileged Will

1. Minimum Age Criteria Dispensation

One notable benefit of Privileged Wills is the dispensation of the minimum age criteria. Unlike other forms of wills, even individuals below the age of 18 can create a valid Privileged Will. This is particularly crucial for young individuals recruited in the Armed Forces who may not meet the age requirement for conventional wills.

2. Tax Exemption Provision

Under Section 154 of the Indian Inheritance Tax Act of 1984, assets passed on by a Privileged Will in India are granted tax exemption. This exemption applies to the estates of present or former members of the Armed Forces if their death resulted from active service.

3. Extended Validity

The validity of a Privileged Will extends beyond the period of active service. Even after leaving the Armed Forces or the cessation of war conditions, the creator retains the privilege, and alterations can be made to the will based on changing circumstances.

4. Execution at Short Notice

Due to inherent relaxations, a Privileged Will can be executed at short notice. This flexibility is particularly valuable in situations where Armed Force personnel are about to embark on missions where their lives are at risk.

Checklist for a Valid Privileged Will

For a Privileged Will in India to be considered valid, certain conditions must be satisfied:

1. The person making the will must be in “active military service,” including those likely to be posted in operational areas.
2. The power to execute such a will can extend to civilian support staff, including nurses, administrators, cooks, and other front-line personnel.
3. The armed force personnel does not need to be in an active war zone to create a Privileged Will; it can be done upon receiving orders to report in an operational area.
4. The person creating the will must be of sound mind (having “testamentary capacity”).
5. A Privileged Will can be in oral form, made by word of mouth, by clearly declaring the intentions.
6. Even a person below the age of 18 years can create a valid Privileged Will.
7. A half-completed will is valid if it can be proven that its non-execution was not due to an abandonment of intentions.
8. If a soldier gives verbal or written instructions for a Privileged Will under life-risk situations but passes away before it could be prepared, the Will is still considered valid.

How to Execute a Privileged Will?

The execution of a Privileged Will follows specific rules:

1. If the testator writes the entire will with their own hand, no signature or attestation is required.
2. If the will is written by another person but signed by the testator, no attestation is needed.
3. If the will is written by another person and not signed by the testator, it can still be deemed a ‘will’ if written at the direction of the testator or if the testator recognizes it as their will.
4. No mandatory presence of two independent witnesses is required for a Privileged Will, and no witness is needed for making alterations.

Case Law on Privileged Wills

The Delhi High Court, in the case of Sunita Shivdasani vs. Geeta Gidwani, addressed the issue of a propounded oral Will and emphasized the importance of complying with the specific provisions applicable to Privileged Wills. The judgment highlighted the distinction between privileged and unprivileged wills under the Indian Succession Act.

In this landmark case, the court elaborated on the conditions that must be met for an oral will to be considered privileged. The judgment clarified that while the formalities are relaxed, the intention of the testator must be clearly expressed, and there should be evidence to substantiate the privileged nature of the will.

Conclusion

Privileged Wills stand as a unique legal provision catering to the distinctive needs of Armed Forces personnel. While offering flexibility in execution, these wills come with specific requirements and conditions. As the legal landscape evolves, it is essential for military personnel and legal practitioners to stay updated on the nuances of Privileged Wills.

FAQs on Privileged Will

Q1. Who Can Make a Privileged Will?

Ans1. A Privileged Will can be made by a soldier, airman, or mariner engaged in actual warfare or being at sea.

Q2. How Long Does a Privileged Will Remain Valid?

Ans2. A Privileged Will remains valid for one month after the testator ceases to be entitled to make such a will.

Q3. Can a Privileged Will Be Revoked Without the Usual Formalities?Ans3. Yes, a Privileged Will can be revoked without the usual formalities. The testator can revoke it by destroying it, writing a new will, or making an oral declaration of revocation in the presence of two witnesses, provided they are still in privileged status.