Wills, Gifts and their differences

A Will (or Testament) is a legal declaration of a person's intention regarding the distribution of their property after their death. It is "ambulatory," meaning it has no legal effect while the person is alive and only comes into force the moment they pass away.

1. Who can make a Will?

Under Section 59 of the Indian Succession Act, 1925, every person of sound mind who is not a minor (18 years or older) can dispose of their property by Will.

• Sound Mind: The testator must understand the nature of the act and its effects (testamentary capacity).

• Free Will: The Will must be made voluntarily, without fraud, coercion, or undue influence.

• Deaf/Mute/Blind: Persons who are deaf, mute, or blind are not prohibited from making a Will, provided they understand what they are doing.

2. Can a Will be revoked?

Yes. A Will is essentially revocable at any time during the testator’s lifetime. Since it only takes effect after death, the testator has the absolute right to change or cancel it.

• Methods of Revocation: It can be revoked by executing a new Will, by a written declaration of intention to revoke, or by burning, tearing, or otherwise destroying the document by the testator (or by someone in their presence and by their direction).

3. Disposal of Undivided Coparcenary Interest

Historically, under traditional Mitakshara law, a coparcener could not dispose of his undivided interest by Will because the Doctrine of Survivorship prevailed (the share passed to the other living coparceners).

However, Section 30 of the Hindu Succession Act, 1956, changed this.

• Current Position: A Hindu can now legally dispose of his undivided coparcenary interest by Will.

• Effect: This effectively overrides the rule of survivorship for the purpose of testamentary succession, allowing a coparcener to treat his share as separate property for the sake of his Will.

4. Distinguish between Gift and Will

Feature	Gift (Inter-vivos)	Will (Testamentary)
Execution	Takes effect during the lifetime of the donor.	Takes effect only after the death of the testator.
Transfer	Immediate transfer of ownership and possession.	No transfer occurs until death.
Revocability	Generally irrevocable once accepted.	Always revocable during the testator's life.
Consideration	Must be voluntary and without consideration.	No consideration involved.
Legal Status	A "Living" transaction.	A "Post-mortem" transaction.