We have heard so many
things pertaining to Will, in movies as well as in real life. But do we really
know what it exactly means, the way it has to be made, different kinds of Will
and the execution? This article / chapter we give you a broader picture about
Will.
A Will is a private and confidential document written by a living
person declaring as to how he would like to disperse and distribute his
properties according to his wish, after death.
It is the final expression of the person’s desire existing at the time
of his death.
A Will comes into effect after the death of the executor. Until then
the document can be changed, revoked, modified or substituted according to the
wishes of the testator. During his lifetime, a Will is just a document,
revocable at any time, having no legal effect whatsoever. The Indian Succession
Act governs it.
The person who makes a Will is called a Testator (male) or Testatrix
(female).
A codicil is a document, which alters or adds any provision to the Will
or rectifies any mistakes in the Will. It is not an independent document like a
Will but a part of it. It is an annexure to a Will. However, it must be
executed in the same manner as the Will.
Certain distinctive features can establish the
authenticity of a Will. The distinctive features of a Will are that it is the
declaration of the intention of the testator as to disposal of his property
after his death; that the Will is revocable; that it would be operative after
the death of the testator, and that the legality of the property is such that
the testator could himself have disposed it when he was alive.
The
person who makes a Will must be in his senses. He shall write his Will while in
sound mind and health, on his own wish and without pressure from any person
with respect to a property, which he desires to bequeath.
A deaf and dumb or blind person too can make a Will provided he or she
is able to know and understand the nature, content and effect of the Will.
A very old person can make a Will only if he can understand the impact
and import of his writing. A person, who is ill or under intoxication is not
capable of writing a Will in such a frame of mind.
Law has not prescribed any particular form for writing a Will. The language used must be simple, clear,
unambiguous, and easily understandable to a common man, and to the point. If a
Will is not clear-cut, the interested parties can challenge it in any court of
law.
A Will is written in the first person. It has no standard form. Acommon form of Will must have the date and place of execution; the name and
address of the testator; a clause revoking previous Wills and codicils; a
clause pertaining to the appointment of executors and trustees; specific
mention of the names of the family members; details of the movable and
immovable properties; clear cut particulars as to who gets what; a clause
pertaining to the testator’s soundness of mind and health and his knowledge of
what he/she has written.
The Testator at the end of the writing should sign it. It should be attested by at least two
persons, who have seen the testator putting his signature in the Will. The
attesting witnesses must put their signature in the presence of the testator.
The testator can
preserve the Will either in a sealed cover with himself or in a safe deposit
vault or with a trusted person. He can register the Will in the presence of the
Registrar or Sub-Registrar of concerned area. Even it can be kept under the
safe custody of the Registrar or Sub-Registrar.
A
Will can be written and executed on a piece of paper. It may be handwritten or
typed or computer printed. It neither needs stamp duty nor it is necessary to
register even if it relates to immovable property.
Though it is not necessary to register a Will, it is always better to
get it registered. This will come handy to obtain a probate if the original is
lost. However, Registration of a Will is optional.
While executing a Will care must be taken to ensure that there are no
additions or alterations in it. If additions or alterations are there the
executor must ensure that the testator properly initials them. This is very
necessary to avoid unwanted suspicion about its credibility.
During his lifetime, the testator can always revoke his Will even
though the Will is said to be irrevocable. But revocation must be according to
law. If there are two Wills, the later one cannot revoke the previous one.
There are different types of Wills. Oral Will, Holograph Will, Mutual
Will, Joint Will, Contingent Will, Privileged Will and Unprivileged Will.
Oral Will :
Oral Will is applicable to Muslims only. It is otherwise called ‘Hiba’.
Holograph Will : Holograph Will means a Will written in testator’s own handwriting
generally. After the Will is written, the testator has to sign it and get his
signature attested. This Will without signature and attestation is invalid.
Mutual Will :
Two persons, generally husband and wife, are involved in making a Mutual Will.
In this Will the husband and wife mutually agree to bestow upon each other the
reciprocal benefits in each other’s
property, subject to other clauses in the Will.
Joint Will : It takes two or more persons to
execute a Joint Will. This Will is made to dispose of their joint or separate
properties jointly. Any one of them or the survivor can revoke the Will. In
such an event, if one testator dies the Will will be considered as his Will and
when the other dies it will again be considered as the latter’s Will.
Contingent Will : It is another kind of Will, which comes into effect
on the happening of any event or condition. It is a Will to do or not to do
something if some event does or does not take place.
Nomination : Statutory institutions like Government departments,
public sector corporations, Post Office, LIC, nationalized banks provide for a
policyholder or a fixed deposit holder an option to propose his or her nominee
in the event of death. In that event the
benefits will belong to the nominee. Nomination is generally in the nature of a
Will and restricted to each item of policy or security.
Privileged Will : A soldier, airman, or a seaman engaged in warfare or
adventure is allowed to make a
Privileged Will. The privileges given among other things are that the Will can
be written or oral. If the testator writes a Will, it need not be signed by him
and attested by a witness. If some other person writes it in whole or in part,
it must carry testator’s signature, but witness attestation is not necessary.
Unprivileged Will : It is a Will not made by a soldier, airman or seaman.
Anyone who is a major can make this Will. He must be a person of sound mind and
in case of ill health he must understand what exactly he is doing. The
Succession Act recognizes Privileged Will and an Unprivileged Will.
A Will must contain a
stipulation with regard to testator’s debts and liabilities. These will have
first charge on the testator’s estate.
The
Succession Act gives priority to payments towards funeral expenses; hospital
and medical expenses incurred before testator’s death; expenses pertaining to
legal matters like obtaining probate and court expenses; payment of wages to
persons employed by the testator before his death; payment of income tax and
other statutory liabilities; secured and ordinary debts. Only after meeting
these liabilities can the testator make a Will. Therefore, the testator must
ensure that his estate is financially sound to take care of his debts and
liabilities, before writing his Will.
Under the Muslim
personal law, a Muslim can make a Will orally or in writing and there is no
form as such for writing. If the Will is in writing it need not be signed or
attested. A person major in age and of sound mind can make a Will and he can
dispose of all or any part of his property by Will. However, there are a few
restrictions.
A Muslim can alter his
Will during his lifetime or cancel any inheritance. A Will may be declared
invalid if the person after making the Will becomes insane and remains so till
his death. Similarly, a Will which is conditional or of future inheritance
would also become invalid in the eyes of law.
Probate is a certified copy
of the Will obtained from a competent court of law. A copy of the Will obtained
through legal process establishes the genuineness of the Will. For this
purpose, the Will has to be submitted to the court. A petition along with the
affidavits of the attesting witnesses has to be filed in the court. Probate
duty and court fee will also have to be paid. A Christian Will must be probated
before implementation. If the properties are situated in more than one state,
then the application for probate has to be filed before any of the High Courts
in which a part of the property is situated.
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