When a person states his/her intention of distributing or handling his/her possessions or property after their demise through a legal instrument or document by naming the executor(s), is termed as a Will or a testament. It should be borne that the Will comes into effect only after the death of the testator. A person making the Will is known as the testator. When a person dies without making a Will is known as dying intestate. This legal concept of Will comes under the Indian Succession Act, 1925. A person can make a Will of only and only the possessions of his own and not the ones acquired from some ancestor. A Will basically specifies the person who Will handle the assets and look subsequently after the death of the maker of the Will.
The Indian Succession Act, 1925, governing the ‘Wills’ applies to Hindus, Sikhs, Jains, Parsis, Buddhists and Christians but excludes Muslims, as they come under the Muslim Personal Law. To make a Will, the person has to be above the age of 21 years.
A Will or a testament has some types. Some of which are: Unprivileged Will, Privileged Will, Joint Wills, Mutual Wills, Conditional Wills, Holograph Wills, etc. An unprivileged Will is a one made by any testator who is not a part of the armed forces, navy or the air force. And the opposite goes for a Privileged Will. Whereas a holograph Will is one which is entirely written by the testator himself in his own handwriting. A Will becomes important if you wish to distribute your property after your demise without creating any conflict or misconceptions. Absence of a Will sometimes becomes the reason of family feud. Hence, a testament is necessary because it is economical and wise to have it made so as to avoid the toil and complications of dividing the wealth among the possible executor(s).
Essentials of a Valid Will
To make a valid Will, following essentials are counted on:
- A Will must mention the name of the maker of the Will: complete name of the testator should be mentioned without any error or mistakes for the validity.
- Appointment of a Beneficiary: the testator has a right to appoint a person as per his/her choice as the beneficiary for the execution of the testament.
- Will comes into effect after death: the Will made during the lifetime of a testator comes into effect only after the death of the latter.
- Factor of Revocation: a Will can be revoked or can be cancelled or some amendments can be made in it during the lifetime of the testator. Condition like changing of beneficiary is also held to be true.
- Intention of the testator is of prime importance: if the testator wants to declare the Will of his choice as the legitimate then the Wills made prior are nullified. This gives the maker of the Will the power to nullify the testament if he/she wishes to.
- Final Will: testator’s previous Wills are cancelled and the last or the final Will is considered to be the original. This Will be the testament which shall prevail further.
- Dealing with the damage or loss of testament: the loss of the Will shall not consider it nullified unless the required and proper evidence is not given to prove its revocability.
Procedure of Creation of Will
Creating a Will
- Confirming the declaration: this accounts to the practice of stating that the testament is to be made without any compulsion, force or pressure along with all the essentials including name, address, age and other details required. All this information has to be provided in the first paragraph of the Will
- Enlisting the details: the next step is to enlist the items under the possession of the testator. These include the all the assets owned solely by the testator. He/she should also provide the details about the custody of the Will and the procedure to acquire it.
- Declaration of all the ownership: the testator should make it clear in the Will about his ownerships and its successive handling. A valid Will includes the name of the person(s) to whom the possessions are passed on to.
- Attestation of the testament: once the Will is completed and properly written, the testator of the Will has to sign it properly and precisely. These details are to be entered in the attendance of minimum two independent witnesses. Also, the place and the date have to be correctly written at the bottom.
- Executing the testament: a Will comes into effect after the death of the testator. After that, the successor or the person receiving the possessions can apply to prove that the Will is officially authentic. If the court certifies the testament then the probate is given. The heir of the testator receives a copy of the certified Will. In case of any complication or conflict, the consent should be given. All the proceedings related to the dispute takes place in the court. Once, the consent is given the authenticity of the Will is declared, therefore, carrying the Will in to effect.
- Registration of Will: Registration of Will is not mandatory, but registration makes it a valid legal document, Registration requires the testator to go to the nearest Sub-registrar office where the testator of the Will resides. Apart from the address proof of the testator, the witnesses must sign/provide a thumb impression shall carry their photographs and address proofs.
A 'Probate' is a copy of the Will attested by a competent court of law which controls the jurisdiction of the Testator’s residence. Hence, Will is a legal instrument which signifies the wishes of the testator regarding the execution and distribution of the assets and properties owned by him in any way he wants the Will to be executed.