Making a WILL
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Making a WILL
A will is a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It is subject to Indian Succession Act, 1925. Will is a revocable declaration which can be altered by the testator during his lifetime.
Will represents the intention of the person which takes effect upon his death. There is no prescribed format to make a will but there are essentials which makes it easy to execute after the death of testator. The required information about the making of a will is discussed in here.
Persons Involved in a Will
• Testator: A person who is making a will is a testator who must be of sound mind and must have attained age of majority. Testator needs to follow the following instructions:
- No prescribed format is required to follow for drafting a will, any adopted format with all the essential details is accepted.
- Testator is free to use his own language.
- Consultation with a lawyer is an option not compulsory.
- A will made in state of intoxication and illness is non-executable.
- A person ordinarily of unsound mind may make a Will during the interval of the soundness of his/her mind.
• Beneficiary: A person or organization who receives the property or assets through a will.
• Witness: Two witnesses are required to execute a will.
• Executor: Executor is a person who ensures the execution of will as per the directions given by testator.
Types of Will
PRIVIILEGED WILL: This will made by the soldiers who are employed in expedition or war like situations, any airman who is employed or engaged, and a mariner being at sea as defined under Section 65 of the Indian Succession Act, 1925. This will can either in form of written statement or in oral form. It is important to note that a Will made in oral form shall be made in presence of two witnesses.
UNPRIVIILEGED WILL: A will which does not qualify to be a privileged will is an unprivileged will. The testator shall sign the Will, or it shall be signed by some other person in his presence and by his direction. The signature shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. The Will shall be attested by two or more witnesses, each of whom has seen the testator sign the Will, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
JOINT WILL: It is type of transfer of property through will executed jointly by two or more persons, mostly preferred by a married couple. This is an acceptable option to combine the testaments of the parties.
Benefits & Advantages
- In the situation of death of some of the parties, the surviving one will inherit the concerned estate.
- Couples can jointly give their entire estate to their children.
- Status of a legal contract.
- One party cannot change and revoke the will.
- Revocation is possible only through the mutual consent of the parties.
- Death of any one of the testators will make the will irrevocable.
Characteristics of a Will
- Legal declaration of intention by the deceased person.
- Execution takes place after the death of a person.
- Declaration given by the person involves distribution of his property and assets.
- A will can be revoked and altered by the testator till the time he is alive.
STEP 1: Adherence with all the essentials discussed above on this page.
STEP 2: Testator can draft a will either himself or through a lawyer. Consulting a lawyer before drafting will be helpful as the lawyer will provide professional advice to reduce the legal complication which might come at the time of execution of will.
STEP 3: Signature of the testator in the presence of two witnesses. Details and signatures of the witnesses need to be there on the proposed will.
STEP 4: Registration and proper stamping of the will to ensure the proper execution.
Conditions of Revocation of a Will
- Execution of a subsequent will of testator revokes the previous will made by him/her.
- A will is presumed to be destroyed in case it was last seen in the possession of testator and found untraced after his/ her death.
- Written declaration of the testator to revoke the will.
- Marriage of a testator after drafting a will revokes the previous will under the principle of Indian Succession Act, 1925.
- Consultation with our Experts
- 1st Draft of will
- Final draft after revisions
- Personal details of the testator
- Declaration by the testator showing his/her willingness and sound mind
- Details of the beneficiaries
- Details of the executor who will ensure the execution of will
- Brief detail of the subjected property and assets
- Share of each beneficiary
- Special directions and instructions of the testator in a specified manner.
- Minimum two witnesses and their details
A person should make a will so as to avoid disputes amongst his legal heirs related to distribution of assets and property post his death.
The executor of a will is a person appointed by a testator whose duty is to see that such will is executed as per the directions of the testator.
If a person dies without making a will then his assets and property will be distributed amongst his legal heirs as per the Indian succession laws.
No, it is not compulsory to register a will.
An executor is generally a nominee or a beneficiary chosen by the testator.
Any person who has attained the age of majority (18 years or above) and is of sound mind can be a witness of a will.
There will be no effect on the validity of will but yes, it can create a problem for legal heirs to prove that such will was made by consent of both the witnesses without any coercion or pressure before death of any of them.
- Indian Succession Act, 1925
- Indian Registration Act, 1908
- Code of Civil Procedure, 1908
- Indian Stamp Act, 1899
• Absence of wilful intention of the testator: In case a will is made under following conditions, will can be challenged:
- Presence of Coercion
- Presence of undue influence
- Under state of intoxication and any mental illness
• Presence of reasonable doubt: The presence of certain elements which indicates some transgression with the will.
• Absence of testamentary intention or capacity
• Absence of signatures of testator and witnesses
• Denial by testator: In case, a testator denies his signature on the will, the will can be challenged.