WHAT IS A WILL
A will is a legal document that specifies who can acquire the movable as well as the immovable property of a person after his death. A testator is a person who makes a will or appoints a lawyer to make it. A will contains the details of a testator, his assets and possessions, name, and other details of the beneficiaries. A person above 18 years of age and sound mind is eligible to draft a will. Will states that between whom the property would be distributed and who will manage the property of a person till its final distribution. There is no limitation as to the number of times a will may be done.
The main purpose to make a will is to reduce the conflicts between the family members of a deceased. A person can control the distribution of his property and other assets. If a person dies without making a will then his property would be distributed according to the laws of intestacy under the Hindu Succession Act, 1925.
KINDS OF WILLS:-
Will are divided into two main categories i.e. Privileged and Unprivileged will.
- Privileged Will: Privileged wills are wills made by soldiers, airmen, and sailors because their lives are at risk. Such a will can be made orally or in writing. There is no legal formality that has to be completed so it can be done quickly. In a privileged will, there is no need for verification. It may or may not be signed by the testator. Formalities can be completed by another person on his behalf. It will be treated as a valid will.
- Unprivileged Will: All those wills which are made by any person other than mariner, soldier, and airmen. Unprivileged will should be necessarily signed by the testator. It is mandatory to have two witnesses present (except for the beneficiaries). These witnesses were designated as supernumerary witnesses. He must sign the will before the witnesses.
According to 63 of the Indian Succession Act, 1925, It deals with the execution of unprivileged wills by the testator. The testator must sign the will in its entirety and the presence of two or more supernumerary witnesses. Witnesses are required to sign the will in the presence of the testator. The testator must sign the will in an intentional manner and without undue influence.
WHAT ARE LEGALITIES INVOLVED WHILE DRAFTING A WILL:-
- The first and foremost thing is a will should be in writing i.e. handwritten, typed assessed.
- A will should be signed by the testator otherwise it would be considered as an invalid will.
- A testator must identify himself as a maker of a will. He should have a sound mind and be free from any coercive, undue influence.
- All the important details should be mentioned while drafting a will:
- Name, father’s name, address, phone number, the signature of a testator
- Name, age, address, phone number, the signature of an executor
- Name, age, address, phone number, a signature of beneficiaries
- List of immovable property along with an address
- Attestation of will by at least two witnesses
- Date and time of preparation of the Will
- The signature of a testator is to be mentioned at the bottom of every page.
- The envelope should be sealed and signed.
- Mention the name of the executor who will be responsible for the distribution of all property and assets after death
- The present value of the land, bank fixed deposits, and other investments should be mentioned by the testator.
- Mention the details of the will if the Will has been created earlier and suppress it. Provide specific instructions if any
- A minor may also be entitled to a share of the property, but a guardian must be appointed until he attains majority.
- Under the provisions of Chapter IV of the Indian Succession Act, 1925, To deal with the creation of a will, certain principles of interpretation of wills that are statutorily recognized require special notice.
- Section 84 provides that if a clause is subject to two meanings, of which according to the one it has some effect and the other according to which it can have none, then the former shall take precedence.
- Section 85 provides that no part of a will shall be dismissed as lacking in meaning if it is possible to make a proper construction thereon.
- Section 86 provides that if the same word occurs in different parts of the same will, they shall be deemed to be used everywhere with the same meaning unless a different intention is manifested.
- Section 87 makes it clear that the intention of the testator should not be set aside merely because it cannot be wholly effective, and that effect is to be given to him as far as possible.
- Section 88 provides that if there are two clauses of a gift in a will, which are contradictory so that they cannot stand together, the last shall prevail.
QUALIFICATIONS AND DISQUALIFICATIONS OF A TESTATOR:-
According to section 59 of the Indian Succession Act, 1925:
- A person must have attained the age of 18 years.
- A person of sound mind can make a will.
- An unwell person can make a will during the interval in which he is of sound mind.
- One must understand the nature and provisions of a Will.
- The presence of a will or a person must be able to distribute his assets among the beneficiaries.
- His consent should be free from any influence.
- Will has to be made voluntarily.
Disqualifications of a testator
- A minor under the age of 18 who nevertheless drafts a will that would be considered an invalid will. A testator would be disqualified.
- A testator was under the influence of alcohol or was not of sound mind when making a will. He will be disqualified.
- A testator was compelled to make a will. or a testator is not acquainted with a will that he has signed.
- A testator may not mention the ownership of others such as a rented house, a store, etc.
- Creation of a will by a testator during suspicious circumstances.
IS REGISTRATION OF A WILL NECESSARY?
According to section 18 of the Indian Registration Act, 1925.
- Registration of a will is not necessary including the immovable property.
- A will may simply be written on plain paper.
- A non-registered will can be contested by anyone at any time and can be destroyed and manipulated.
- A government does not have the mandate to register a will because it is not the final document required for the distribution of goods between beneficiaries.
- The executor starts the process of administering a will following the death of a testator. He has to present a death certificate of a testator. All other required documents must be submitted to the court by a testator.
- Once all documents have been verified, the court will inform all legal heirs.
- The court confirms the homologation and then all the property and possessions are transferred to all the legal heirs of the testator.
ADVANTAGES OF A REGISTERED WILL:-
- It is advisable to get the will registered because it has legal validity over unregistered will. If an original will even be destroyed or stolen by someone, a certified copy will always be present with the registrar.
- It safeguards the interest of a testator and ensures secrecy of will as a sealed will can not be open before the execution of the will.
- Only the testator or his duly authorized representative can obtain the certified copy of a will from the registrar’s office.
- It reduces the chances of conflicts between the beneficiaries as no one can change the terms and conditions of a will.
- For the registration of a will. All the documents including photographs, address proof of the legal heirs and witnesses to be submitted in the registrar’s office. Once it is registered it can be kept in the safe custody of a lawyer or a registrar.
- If a person wants to revoke a will, he needs to send the personal request to the registrar. It’ll be handed over to the person.
PROCESS OF AMENDMENT OF A WILL:-
- During the testator’s lifetime, the will can be amended at any time. A will’s contents can be changed due to changes in circumstances.
- The will can be amended in two different ways. Firstly, through a codicil, i.e., making changes to the older will or replacing it with the newer one.
- Your testament can be amended or expanded by adding a codicil. Adding or rescinding portions of your will can be done with a codicil. It’s just like a legal will, they have to be witnessed, dated, and signed before they’re valid
- In some cases, a testator may amend a previous will and write a completely new one. The beneficiary names can be changed, or a new person can be added to the will.
- Formalities such as signatures of the testator, witnesses, and executor’s information must be completed again. Any new will can be registered by the registrar.
- In the event of a joint being amended. To change the terms and conditions of a will, both testators must agree. There should be an understanding between them about the changes’ consequences.
- There is no restriction on how many times a will can be amended.
ROLE OF WITNESSES:-
According to the Indian Succession Act, 1925, A will must be attested by two or more witnesses. To verify the authenticity of the will, witnesses are appointed. Unlike testators, witnesses verify the testator’s actions and can be contacted later to verify what they said. Any coercion or undue influence is not allowed in the making of a will. They ensures that the will was signed by the testator in their presence. As long as a will is in effect, the person who signed it is not present to say whether the document being presented in probate court is his will. But if there is a witness, he can accept the authenticity of the will before the executor and the court. Witnesses are required to verify the validity of the will if anyone questions it.
WHO CAN BE A WITNESS IF A WITNESS IN A WILL IF THE MAKER OF THE WILL IS HOSPITALISED:-
- The age of 18 years is the minimum requirement for being a witness to a will.
- One needs to keep in mind that that person should not have biased opinions on the matter.
- The beneficiaries and the executor aren’t allowed to be witnesses.
- At the time of the testator’s signing, the witnesses ought to sign the will as well.
- It is valid for the witnesses to receive a personal acknowledgment from the testator on his signature or mark, or on the signature of another person.
- Although the Will would still be valid if witnessed by an inheritor mentioned in the Will, the property will not go to the inheritor witnessing the Will.
Thus, any person who is named as an inheritor or beneficiary in a Will must not witness or attest to that document.
- If a testator is hospitalized, it is mandatory that one of the witnesses is the testator’s doctor. It is advisable for the testator to ensure that the doctor’s signature is present along with a duly signed medical certificate certifying the health of mind and mental fitness of the testator.
- It is also advised to remain highly prudent under this situation and ensure that the testator records the entire process through video recording while reading it aloud to fully prove the validity of the will.It is also advised to remain highly prudent in this situation and ensure that the testator records the entire process through video recording while reading it out aloud to fully prove the validity of the Will.
REVOCATION OF THE WILL:-
A will can be revoked anytime by a testator. If a testator wishes to revoke his will it can be done anytime by writing a subsequent will. It can also be revoked by burning, tearing, striking out the signature, or intentional physical destruction. A testator can declare a will null and void in the presence of witnesses. If a will can not be found after the demise of the testator it would be considered as a revocation of the will. A will can also be revoked by the birth of a child, marriage, divorce or sale and purchase of any property by the testator because it changes the legal duties of a testator towards all the beneficiaries. However under Section 57 of Indian Succession Act, A will can not be declared null and void after the marriage ( applicable for Hindu). When a testator and spouse have divorced, but the testator’s will has not been updated since the change in marital status, any disposition to the former spouse is revoked.
The will acts as a protector of a family as it safeguards the interests of the testator and the beneficiaries. It is mandoatroy to be regiastered however it is advisable to register a will. A person can make the will himself. There is no compulsory requirement of a lawyer to make it. If a testator does not make a will before his death. The disputes between the family members of the testator may arise and the property and pssessions of the testaor would be distributed under the rules of intestacy. Many people believe that when they die, everything will automatically go to their spouse. It is not necessary that the case and the property be divided among all the heirs. Sometimes property and items of special meaning to people close to you may need to be sold. Making a Will is, therefore, a crucial part of financial planning.
Authored by: Roshni Agarwal
Amity Law School, Noida