CONCEPT AND ESSENTIAL ELEMENTS OF A WILL
According to Section- 2(h) of the Indian Succession Act, 1925,
“A Will or Testament is a legal declaration of the intention of a person when he wants to distribute his estate as a testator to the people who would be inheriting the estate after his death. It is to be duly noted that the testator cannot include any property in his Will, which is a joint family property or ancestral property.”
WHO CAN MAKE A WILL?
The Indian Succession Act, 1925 mentions about those who can make a will under Section 59. A will can be made by:
- Any person who attains majority at the age of 18 years,
- A Person who is not mentally challenged, but if a person who at the time of making the Will is mentally sound, that Will shall be valid in the eyes of Law. Also, a Will is not valid, when at the time of the making of the Will the person is not able to understand the nature and consequences of his acts due to intoxication.
ADVANTAGES OF A WILL
- Instructions Delivered: A Will leaves explicit details and directions about the deceased’s property and estate.
- No Confusion: A Will specifies about the share of the property to be given to the inheritor, as declared by the testator. Thus, no confusion occurs about the distribution with respect to the property.
- Protection to Business: A Will plays an important role in the protection of the one’s business, by passing on their company or power of attorney to one’s preferred heirs.
- Safety for Minor Children: The Testator can create safety instructions for his minor children by appointing a guardian of his choice and can also make financial arrangements for them.
- Revocation and Modification: A Will can be revoked during the testator’s lifetime, and a will can also be modified, if circumstances change and the testator wants to remove or include any relative or any near one, he can make changes in his Will.
- No requirement of a Lawyer: A person can make his own Will all by himself, there is no requirement to get a Will made by a lawyer.
ESSENTIAL ELEMENTS OF A WILL
- Testator Details – Name, age, address details of the person making the Will
- Legal declaration – A Will is a declaration by which a living person (called testator) declares his desires or intentions. It is never an agreement or contract or settlement. It is for this reason that the beneficiaries of a Will should not be parties to the Will. The declaration must be legal. A will is not considered as a Will if the declaration of the will is illegal either by way of the ultimate objective or in some other way.
- Intention of testator – A Will is a declaration of intention of the person making the Will which is related to the future and is different from the statement of narration of facts as at present. If a Will only narrates the present state of affairs and does not carry a clear exposition of the intention of the testator is not a Will. Similarly, if a Will made by a wife stating the desires of her deceased husband what he used to desire before death is not a Will.
- With respect to the property – A Will can only be made with respect to the property that the testator owns as it is a simple rule that one can only give what he has and no way he can give away something that he does not have
- Beneficiary Details – In case of multiple beneficiaries, the details of each beneficiary like name, age, address, relationship of the beneficiary with the Testator.
- Desires to be carried into effect after the death – The Will must clearly state that the testator desires the will to come into effect after his death. A renunciation during one’s lifetime does not amount to a Will and if the document desires to partition the properties among the testator’s sons while the testator is still alive, the document is not called a Will.
- Guardian for Minors – If the Testator wishes to give his property to any beneficiary who is a minor, then definitely he should appoint a guardian to take care the properties of the minor till that minor attains the age of majority.
- Executor of the Will – The Testator should appoint an Executor to his Will.
- Signature and Date – The Will should be clearly dated and signed by the Testator at the place in the document just below the last sentence in the document.
- Exclusions – The Testator cannot give his joint family properties or his ancestral properties that is common to many other members. Such a Will becomes void.
- Gnanambal Ammal v. T. Raju Aiyar
The Supreme Court held that the cardinal maxim to be observed by the Court in the construction of a Will is the intention of the testator. The intention is primarily to be gathered from the language of the document which is to be read as a whole and it is the primary duty of the court is to determine the intention of the testator from the Will itself by reading the Will.
- Bhura v Kashi Ram
The Supreme Court held that a construction which would advance the intention of the testator has be favored and as far as possible effect is to be given to the testator’s intention unless it is contrary to law. The court should put itself in the armchair of the testator.
- Navneet Lal v. Gokul & Ors.
The Supreme Court held that the surrounding circumstances should be considered by the courts, like the position of the testator, his family relationships, or the probability that he would use words in a particular sense. However, it was also held that the factors are merely an aid in ascertaining the intention of the testator. The Court is not supposed to speculate the intention of the testator from his writing. The Court can only interpret in accordance with the express or implied intention of the testator expressed in the Will. It cannot recreate or make a Will for the testator.
REVOCATION OF A WILL
The Termination or Revocation of the Will can be done by:
- Writing and declaring an intention to revoke the Will,
- Burning of the Will,
- Execution of a Subsequent Will,
- Tearing of the Will,
- Otherwise Destroying the Will,
- Loss of Will shall be presumed to be revoked.
Author: APURVA .,
3rd Year, Fairfield Institute of Management and Technology, GGSIPU