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Will - What is a will, Is registration necessary, Can will be modified, Who can challenge it

What is the definition of Will, what are the essential conditions in the will, who can cancel it, who will get benefit, What is Probate of will.

Will

As per Section 2(h) of the Indian Succession Act 1925 "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Any person who is of sound mind and who is not a minor can make a will. A will and testament is a legal document that communicates a person's final wishes pertaining to assets and dependents and it describes what to do with the assets. A will can be prepared even on blank paper.

 

Essentials of a Will

Details of Testator

A will should contain the name, age, address and details of the person making the will.

 

 

 

Legal Declaration

The Testator who is a living person declares his desires and intentions through a will. The declaration must be legal.

 

Intention of Testator

A will is prepared on the basis of Intention of the Testator which is described as per his wish.

Intention with respect to property

The will is preparing with respect to the property that the Testator owns or he has a right on it. Details of the properties which the testator desired to give to his beneficiaries should be mentioned in the will. The details will include the description, registration number, date of registration, measurement, address   and whether it is his self acquired property etc. In case of movable property, the details and description of each should be individually mentioned.
 

Details of Beneficiary

The will should contain details of each beneficiary like name, age, address, relationship of the beneficiary with the Testator etc

 

Will is effective after death of the Testator

The Will must state clearly that the testator desires that it comes into effect after his / her death.

 

Appointment of guardian in case of minor as a beneficiary

If the beneficiary of a will is a minor, a guardian should be appointed for him/her to take care of the property till the minor becomes major.

 

Appointment of Executor

The Testator should appoint an executor to the will. The executor will implement the will after the death of Testator.

Signature and date

The will must be signed by the Testator and the date must be clearly mentioned.

Witnesses to the Will

At least two witnesses should be signed on the will who can give declaration if future also.

 

Types of will

Privileged will

The persons who can make a privileged Will are:

(a) Soldier / airman employed in an expedition or engaged in actual warfare; and

(b) mariner at sea. Relevant section of Indian Succession Act, 1925 reads as follows:

A privileged Will can be in writing or can be oral. A privileged Will written in his own hand by the Testator need not be signed. A privileged Will signed by the Testator does not need attestation by witnesses. Privileged Will is a special Will made in extraordinary circumstances like war or dangerous expedition. Most importantly, Hindus are not permitted to make privileged Wills since the relevant sections 65 and 66 of Indian Succession Act, 1925 are not listed in Schedule III of the Act.

 

Un privileged Will

This is the normal Will which an ordinary person can make. Essential requirements of an unprivileged Will is as under:

1. It must be in writing Signed by testator in the presence of witnesses

2. It must be Signed by two or more witnesses in presence of the testator
 

 

 

Distribution of Assets in a Will

(1) Spouse

(2) Children

(3) Parent(s)

(4) Brothers/Sisters

(5) Other Relatives

(6) Friends

Or Charity
 

Is Registration Compulsory for a will

As per Section 18(e) of the Registration Act 1908 registration of will is optional. But a registered Will provides strong legal evidence against challenges about the mental capacity of the testator to make a Will. In case of a registered Will, all subsequent alterations or modifications (Codicils) should also be registered. The testator may make a fresh Will revoking the registered Will and declaring the provisions of the fresh Will as his final desires. Even if the fresh Will is unregistered, (if it is of a date later than the registered Will), the fresh Will shall prevail over the registered Will. Though the registration of a Will is not compulsory, it can be registered with the sub-registrar. If, at any time, the testator wishes to withdraw the Will, he can do so.

 

What is probation of a will

Probation of a will is a decree passed by a competent court declaring the legality/correctness and genuineness of the Will of the deceased. For this a Suit for Probation of will must be filed in a Civil Court. Probate of a Will when granted, establishes the genuineness of Will from the death of the testator and renders valid all intermediate acts of the Executor as such.

Some of the terms related to Will

Intestate

This is when a person dies without leaving behind a valid will. There are laws governing intestacy to determine how your assets are to be distributed which will differ depending on your religion.

Testator

A person who makes and executes a will is called a testator.

Beneficiary/Legatee

A person or organisation to whom the assets are given.

Executors

The people you name to handle the division of your assets. You can have up to four executors. It's generally best to name more than one executor, in case one passes away.

Probate

The legal document to be obtained by the executors after your death giving them the authority to handle your assets.

Administrator

A person who deals with the division of your assets if you haven't left behind a will.

Codicil

A legal document which amends or adds to a will. For a codicil to be valid, it has to be written and executed in the same way as the will it amends.

 

Valid Will

Person making will should be with Sound Mind

The person creating the will should be of completely sound mind at the time of writing it. Therefore, a lunatic or idiot can never create a will. However, a person, may create a will in case he/she is lucid at the time of writing it. On the other hand, a completely sane person cannot have created a valid will if he/she was inebriated at the time of its creation.

A Major person can only make will

A minor person cannot make a will in India. A testementary guardian is appointed to dispose the property of a minor.

Own volition

If a will is attained through coercion, it is invalid. This means that, should a son or daughter force (by being mentally or physically coercive), their parents into writing a will in their favour, it is invalid.

A will can be made for Own Property only

A will can be made by any person, and the presence of lawyer is not necessary. But if it is prepared under the guidance of a lawyer, future complications can be avoided.

 

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