Privileged Will

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Overview

A “Will” or “Testament” is a legal document by which a person (the ‘testator’) expresses as to how his/her movable/immovable property needs to be transferred/ distributed on account of his/her death. There are different types of wills and in this blog, we will discuss one of these, namely, the privileged will.

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What is a Privileged Will?

A privileged will is one that can be made by a member of the Armed Forces engaged in actual warfare or employed in a certain expedition. As a will is nothing but a legal declaration, certain formalities must be met with for making a valid will in India. However, considering the associated possibility and dangers of sudden death and lack of time, owing to the nature of their line of duty, such formalities are somewhat relaxed for the armed forces. This is what separates a privileged will from other forms of wills such as an unprivileged will. In India, the privileged will cases are governed by the Succession Act of 1925.

What are the benefits of a Privileged Will?

Most families in India do not follow the practice of creating a will. However, death is an unavoidable scenario and having a privileged will in family law can help families to avoid legal hassles related to property matters, that may arise on account of the death of the head of the family.

Moreover, Armed Force personnel employed in actual warfare or warlike situations cannot always have the time and resources for completing the entire formalities associated with executing a legal will. Therefore, as per privileged will case law, they are allowed some relaxation with regard to these formalities.

Here, we will look at some of the major benefits of having a privileged will in india -

The minimum age criteria is dispensed with

In contrast to other forms of will, even a person below the age of 18 years can create a valid privileged will. This is important for young people under 18 years of age, who are recruited in the Armed Forces. Because of their tender age, they would not be able to create a conventional will otherwise.

Provision of Tax exemption

As per section 154 of the Indian Inheritance Tax Act of 1984, the exemption is allowed on the assets passed on by a privileged will in india. This exemption is granted on the estates of present/former members of the Armed Forces if an active service has led to their death.

Extended validity

The validity of privileged will gets extended after the creator has left the Armed Forces, has no longer been amidst the dangers of operational duties or even after a war has ended. Also, the creator is free to make alterations in his will even after the change of circumstances which gave him the power to make the privileged will earlier. He will still be assumed to be in the privileged status.

Can be executed at a short notice

Because of the inherent relaxations, a privileged will in family law can be executed at a short notice. This is extremely helpful in situations when an Armed Force Personnel is about to put his life at risk.

What are the points to consider while making a valid Privileged Will? ( checklist)

The following conditions must be satisfied for making a valid privileged will in india-

  • A privileged will in India can be made by a person in “active military service”. It would normally include Service personnel who are in the likelihood of being posted in an operational area.
  • The power to execute such a will can be extended to civilian support staff including nurses, administrators, cooks, and other front line personnel.
  • The armed force personnel does not need to be in an active war zone to be eligible to create a privileged will. He can do so even upon receiving an order to report in an operational area.
  • As per privileged will case law, the person creating the will must be of sound mind (should have “testamentary capacity”)
  • A privileged will can be in oral form. It can be made by ‘word of mouth’, by declaring the intentions clearly
  • In contrast to other forms of will, even a person below the age of 18 years can create a valid privileged will.
  • A half-completed will is also a valid one if it can be proved, beyond a reasonable doubt that, its non-execution was not because of an abandonment of intentions to create it.
  • If an Armed Force soldier, under life-risk situations, has given his verbal or written instruction for the preparation of a privileged will but has expired before it could be prepared and executed, the Will is considered a valid one.

How to execute a Privileged Will?

As shown by privileged will cases, a privileged will can be executed by adhering to the following rules-

  • If the privileged will is written by the testator in whole, with his own hand, there is no need to sign or attest the same
  • If the privileged will is written in whole or in part by another person but, is signed by the testator, there is no need to attest the same
  • If the privileged will is written in whole or in part by another person but, is not signed by the testator, the same will be deemed as a ‘will’ if
    • It is written at the direction of the testator, or
    • The testator recognizes it to be his will
  • It is not mandatory for a privileged will to be signed in the presence of two independent witnesses. Also, there is no need for a witness to be present while making any alterations to a privileged will.

A privileged will can be revoked as well, without completing the formalities required for that of a conventional will, only if the testator has remained in privileged status. But, if the testator is no longer in the war zone or has left the Armed Services altogether, he must revoke the Will in complete accordance with the provisions mentioned in the Wills Act, 1837.

FAQs

You are not legally bound to register your privileged will. But, it is a good idea to have it registered with the Sub-registrar under the provisions of the Indian Registration Act, 1908. The registrar then becomes the legal guardian of the will and there will be strong evidence in law for the validity of the will. The validity of the registered will cannot be changed after your death.
You can revoke your privileged will without completing the formalities required for that of a conventional will, only if you have remained in privileged status. But, if you are no longer in the war zone or have left the Armed Services altogether, you must revoke the Will in complete accordance with the formalities mentioned in the Wills Act of 1837.
Yes, you are. As per section 154 of the Indian Inheritance Tax Act of 1984, the exemption is allowed on the assets passed on by a privileged will. This exemption is granted on the estates of present/former members of the Armed Forces if an active service has to led to their death.

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