WILL – Understand It Before Its Too Late

A will or testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed after death, and names one or more persons, the executor, to manage the estate until its final distribution.

DEFINITION

As per Section 2(h) of Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death Will has been defined in Corpus Juris Secundum as A ‘Will’ is the legal declaration of a man’s intention, which he wills to be performed after his death, or an instrument by which a person makes a disposition of his property to take effect after his death.

A last will and testament is a legal document that communicates a person’s final wishes pertaining to possessions and dependents. A person’s last will and testament outlines what to do with possessions, whether he is leaving them to another person or group or donating them to charity, and what happens to other things for which he is responsible, such as custody of dependents and accounts and interests management.

A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. However Mohammedan are not governed by the Indian Succession Act, 1925 and they can dispose their property according to Muslim Law.

Will is a type of legal document used to transfer the property of a person after death as per his/her wishes. The importance of Will cannot be stressed enough as lakhs of civil cases are pending before various Courts for resolving inheritance disputes. Further, all Wills are revocable at any time during the life of the person and is a confidential document. Hence, it is important for everyone to know about the benefits of having a Will and create a Will.

Privileged Wills

These are the wills made by a soldier employed in an expedition or actual warfare, or an airman so employed or engaged or a mariner at sea. Persons such employed cannot be expected to have the resources and time for completing all the formalities required for validation of the will, therefore they have been excused from such legal requirements and given the privilege of making simpler wills.

  • Privileged wills may be in writing, or may made by word of mouth.
  • The execution of privileged wills shall governed by the following rules:–
  • The wills should be written wholly by the testator, with his own hand. In such case it need not signed or attested.
  • It may written wholly or in part by another person, and signed by the testator. In such case it need not attested.
  • If the instrument purporting as wills written wholly or in part by another person and not signed by the testator. The instrument shall deemed as testators will, if shown that it was written by the testator’s directions or that he recognized it as his will.
  • If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, may invalid, provided that his non-execution of it can reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument.

Unprivileged Wills

All other kinds of wills, which are not privilege wills are called unprivileged wills. These are the wills that need or require certain conditions to be fulfilled for the wills to be valid. These are the wills commonly made by the masses.

  • Testator shall sign or affix his mark to the will, or signed by other person in his presence and direction.
  • The signature or mark of the testator, or the person signing for him, shall placed that it shall appear as it intended to give effect to the writing as a will.
  • The will shall attested by two or more witnesses. Each of two seen the testator sign or affix his mark to will or seen other person sign the will.
  • The signing of the will should be in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark,or of the signature of such other person; and hence, each of the witnesses shall sign the will in the presence of the testator.

Registration of a Wills may not be necessary.

It is although a convenience for the law, but it does not affect the wills as such. It is advisable to register the wills with the registrar where the registrar then becomes the legal guardian of the wills, the document then becoming strong evidence in law for the validity of the wills. A WILL has to be in writing, there is no sanctity, validity or authenticity of a verbal WILL in India. A WILL once written can be registered subsequently. Normally a document must be registered within 4 months of its execution as per the Registration Act, 1908; but, Section 23 read with Section 27 of the Indian Registration Act carves out special exemption to WILL, and allows registration of WILL subsequent to its execution, and without any time limit. But, WILL has to be drawn properly so as to convey its true meaning, signed/executed and must have at least 2 witnesses (Section 63 in The Indian Succession Act, 1925).

Parties to a WILL:

Testator, Executor, Beneficiary, Guardian, and Trustees.

  • A testator is the author of WILL, who creates the WILL of his estate.
  • An executor is best reliable person of the Testator, who would carry out instructions of WILL, after death of Testator. An executor is responsible to manage the assets until they are disbursed according to WILL. It is not mandatory to appoint an executor.
  • There is generally no requirement for a Guardian unless the beneficiaries are growing children. A guardian provides for essential needs till they attain the age of Major.
  • Sometimes a Trust is created for the estate of deceased. The Testator appoints a trustee to manage the trust for ultimate beneficiaries.

Whether WILL is a conclusive Document? Can WILL be Challenged?

No, it is not a conclusive document. A WILL, registered or unregistered can be challenged, and once it is so done, the document (WILL) has to be through entire trial process. But, the success rate of such a challenge for a registered WILL is comparatively negligible as compared to an unregistered WILL. A registered WILL is usually accepted by Courts, whereas an unregistered WILL casts doubt on its authenticity when the estate is bequeathed to an unrelated person outside the family of the deceased. Any person can challenge the WILL, as long as such person can demonstrate before the Court any malice, fraud or tempering with the document. It means anyone who may have an interest in the estate of the WILL can challenge it.

Do Legal Heirs have Right in the Property of Deceased?

The WILL supersedes the provisions of the Indian Succession Act, 1925. The heirs have right in the property of deceased under the Indian Succession Act. But, when a WILL is executed, the heir cannot claim anything under the Succession Act, whereas the terms / stipulations mentioned in the WILL shall prevail over any other document or right. Therefore, this document of WILL is normally called as a Last WILL, as the testator is expected not to have created a third party interest in his property after writing a WILL. However, in case the testator happens to create any third party interest in his property even after creating a WILL, but before his death, he can do so. Accordingly, he should amend / alter or re-write his WILL. It is always advisable to periodically amend the WILL, showing latest and true position of the estate of the Testator. A registered WILL should ideally be replaced with another registered WILL.

When registering a Will, you need not pay stamp duty but you have to pay a registration fee

Conditional or Contingent Wills

When we talk about contingent or conditional Will in Indian Law, then this type of will comes into effect in case of an event satisfying the conditions mentioned in the Will. It is evident from the name of the Will that it is created on certain conditions, and there are certain factors that need to be taken into account to execute this Will. And if the condition doesn’t happen or it fails to happen, then the Will won’t be executed.

Concluding from this, we can say that a Will is a document that has all the detail about the distribution of a deceased person’s property to their relatives and loved ones. Besides, the Conditional Will is used by a person when he/she wants the Will to become effective on the fulfilment of certain conditions or in case of occurrence of some event. An important aspect of this type of Will is that they are holographic, they are completely handwritten, or they can be attested, that means that this Will is signed by the testator and two witnesses.

Benefits of a Conditional Wills

There are several benefits of having Conditional Will;

  • Firstly, it will only be executed under the fulfilment of certain conditions.
  • Secondly, this Will has definite conditions; in case of failure of fulfilment of these conditions, the Will won’t be executed. These Wills are holographic and are attested by two witnesses making them more authentic and valid.
  • Before going ahead with the making of conditional Will, it becomes important that you must ensure that the pointers in the Will are written aptly and are easily understandable.

Checklist for a Conditional Wills

Well, a lawyer would be the best person to help in this condition, but here we will be highlighting what are the key pointers that you need to take into consideration while going ahead with Conditional Will:

  • Hiring a good lawyer to create a Will
  • Defining conditions of the Will
  • The names of the person who will become the owner of the asset after the fulfilment of the conditions of the Will
  • Two witnesses to sign the Will
  • Signature of the person who wishes to make the Will

How to make a Conditional Wills?

Well, the formulation of the Conditional Will is dependent on various factors, and a good lawyer is a must for this who can explain all about Conditional Will and its conditions, but here we will illustrate some examples as to how you can make Contingent Will.

Joint Wills

Another type of Will that we have in our system is the Joint Will. As evident from the name “joint”, this Will involves two or more persons who create the Will, or they agree to make a conjoint Will.

A joint will distributes the property of two or more people, usually a married couple. Joint wills determine what will happen to the couple’s property after one spouse dies, and also what will happen to the property after the second spouse dies. though it may seem convenient to a couple to make just one will, joint wills can cause problems for the surviving spouse because it ties up property and restricts what he or she can do with it, forever. For example, if a couple makes a joint will and the husband dies in his forties, the wife may live another 40 or more years but she will still be bound by the terms of the will made earlier in her life. Joint wills are best used (if at all) by couples who have children in common and who want to ensure that property will go to those kids (instead of a subsequent spouse or child). But there are better ways to do this, like using children’s trusts.

Instead of making a joint will, consider making mutual wills (also called reciprocal or mirror wills). Mutual wills are two separate wills that are close mirrors of each other. They allow couples to “leave everything to each other” and any number of other similar wishes, but because each person has his or her own will, he or she is free to change it as needed after the first spouse dies.

Concurrent Wills

Concurrent Wills are written by one person wherein two or more Wills provide instructions for disposal of property for the sake of convenience. For instance, one Will could deal with the disposal of all immovable property whereas another Will deals with the disposal of all movable property.

Mutual Wills

As evident from the name, in this type of Will, the testator confers on other for benefits. It is executed by husband and wife during their lifetime to pass the benefits to other people during their lifetime.

Duplicate Wills

A testator creates a Duplicate Will for the safety purpose. A copy of the original Will is kept in the bank or with an executor or trustee. In case the testator decides to destroy the Will in his/her custody, then the Duplicate Will won’t be considered valid.

Sham Wills

Sham Wills claims to be a Will but is not considered valid because the testator did not intend to have executed this Will as per his/her wish. As per the Indian Succession Act, a Will made by fraud is considered invalid.

Oral Wills

Oral wills are valid in just a few states and under very limited circumstances. They usually require a present of fear of death and they can be used only to distribute personal property. Oral wills are unusual and uncertain. If you are planning to make a will, do not plan to make an oral will on your death bed. Instead, take some time to make a formal will.

Handwritten Wills/Holograhic Wills

About half of the states recognize handwritten wills, also called holographic wills. A holographic will must be in your own handwriting, and it doesn’t have to be witnessed. Although this might sound easier, holographic wills can cause problems after you die because the court will have to decipher and verify your handwriting. This can cause hassles for your family. Also, if you want to make a will of any significant length or complexity, it will be much easier to make a formal will on a computer, using software, or with a lawyer’s help.

That said, if you are in a pickle and need a will fast, by all means write your wishes down in a handwritten will. In many cases, a handwritten will is better than no will at all. However, if you have the means and opportunity, make a formal typed Will – it will result in a more robust, precise, and easily probated document.

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