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.