Wills: Meaning, formation and execution
By Garima Singh August 04, 2016
In India the laws of will are generally covered by the Indian Succession Act, 1925. However, this Act does not apply to Muslims because the succession act of Muslims is largely governed by their personal laws. This means that the law of will provided in the Indian Succession Act, 1925 governs all communities i.e. Hindu, Sikh, Jain, Parsi, Buddhist or Christian.
In this blog post we shall talk about the law of will as applicable by Indian Succession Act, 1925.
A will is a legal declaration or a testament given by a person stating the manner in which his/her property or estate will be distributed after his/her death. Section 2(h) of the Indian Succession Act,1925 defines will as a legal declaration of the intentions of a testator regarding who will carry his/her property after his/her death.
Certain key words
Testator- the person who is making the will. He is authorised to appoint any person as his beneficiary.
Intestate- When the person dies without writing his will, he is said to have died intestate.
Legatee or beneficiary - A person or a group of person or an organisation who is left something under the will.
Executor- An executor is the person or a group of person, lawyer or any organization which is responsible for the distribution of assets as per the will.
Codicil- Any alteration made to the will is provided through the codicil, it forms a part of the will.
Who can make a will?
Section 59 of the Indian Succession Act establishes that a will can be made by any person who is eligible to contract. That means any person who is of sound mind and a major is competent to make a will. Any minor can make a will only through a testamentary guardian. A person who is deaf, dumb or blind is also eligible to make a will as far as they know what they are doing.
Who can be a beneficiary?
Any person or group of person who are eligible of holding a property can be a beneficiary. A minor can be a beneficiary but a guardian should be appointed by the testator himself. However there are certain restrictions provided by the Indian succession Act on disposition of property by will e.g. - One cannot bequeath for an indefinite time or to an unborn.
What can become the subject matter of the will?
Any movable or immovable property can form a subject matter of the will. The property should be self-acquired and the person disposing the property in the will should have the right to alienate the property.
Any ancestral property cannot be disposed off in a will.
Features of a valid will
- Testator’s Name- The name of the testator should be clearly mentioned in the will. It should be free of any spelling mistakes.
- Lawful- The will should be lawful and the testator should have the right to dispose of the property in the will.
- After Death- The will come into execution only after the death of the testator.
- Revocability- The will can be revoked at any time during the life time of the testator.
- Alterations- The testator has the right to make any alterations in the will as long as it is legal.
- Last will- Though the testator can make alterations and can even make a new will innumerable times but the last ‘will’ will prevail.
- Intention- Though the wordings of the will may be ambiguous but the intention of the testator is always paramount.
Procedure to make a will
- Declaration – In the first paragraph of the will the testator has to provide his full name, address, age etc. In the first paragraph itself the testator should provide a declaration that he is making the will without any coercion and undue influence. He has to declare that he is making his will in his full senses and knows what he is doing.
- Detailed list of property- The second step is making a detailed list of the entire property movable and immovable which the testator owns. The property should be listed with their current values and the location.
- Placement of will- The testator should provide in the will where it will be kept the testator should also discuss the same matter with the executor. He should provide the executor the procedure to release the will after his death.
- Details of ownership- The testator should mention the name of the beneficiary of the property. It could be one person or a group of persons. In case of group of persons the testator should mention the fraction in which each person will get. In case of minor as a beneficiary the testator should provide for a custodian of the same.
- Attestation of the will- After the testator has written the will and reviewed it; he should sign the will in the presence of two witnesses. The witnesses shall sign the will after the testator certifying that the will was signed in their presence. The will should also contain the date and the place for signing of the will. To avoid legal disturbances it is recommended that the testator signs on every page.
- Registration- Though it is not a compulsory step but a recommendatory one. When the will is prepared it is deposited to the registrar or the sub-registrar of proper jurisdiction. After proper scrutiny the registrar shall enter it in the book of registrar and order for registration of the will. A civil suit can be filed within 30 days if the registrar rejects the will.
- Execution of the will- The will can be executed only after the death of the testator. Once the testator dies, the executor or the heir of deceased can file in the court for probate. The court will then satisfy that there are no objections by the other heirs of the testator. If there is no objection the court shall grant the probate. It is the conclusive proof of the legitimacy of the will.
Important points to be noted
- A will can be handwritten or typed.
- It should be properly dated.
- The wording should not be ambiguous.
- The testator should clearly mention all the details of the property and the percentage to each beneficiary
- If there are more than two changes in the will instrument then the testator is recommend to make a new will.
- However if there is only one minor change then a codicil can be provided.
The format of a will:
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