A will or a testament is a legal declaration made by the owner (testator) in which he names one or more than one person to manage his/her estate. Will preparation is a very simple process because there is no fixed format. One does not even require proper court paper or a format, a will can simply be written on an A4 size paper. The only requirement for a will to be formally called a Will is, signature/thumb impression of the person making the will along with signature/thumb impression of any two witnesses stating that this is your will.
Any person who is legally entitled to own his/her property and he/she wishes to pass on after his/her death can write their own Will in India.
Concept of Will
The rise of India as an independent nation in 1947 saw many modern changes. People knew the importance of having their own independent land and wanted to make sure that after their death, their property along with their children was well taken care of which lead to the emergence of the Will. The Will is governed by the Indian Law, more prominently the Indian Succession Act of 1925 applicable to all the communities in India except the Muslim community.
According to Section 2(h) of Indian Succession Act, 1925, “A Will or a testament is a legal declaration by which a person i.e. the testator, names one or more persons to manage his/her estate and also provides for the transfer of his/her property at the time of death.”
Although the age of adulthood in India is 18, a Will can be made by anyone above 21 years of age in India. A Will is a statement which comes into effect after the death of the testator, instructing the way his estate/property must be distributed after his death. If a person dies without writing any will then he is said to be have died intestate. The person in whose favour the testator bestows any property, share, etc. is called a beneficiary or legatee.
Statutes relating to Will
There are many laws which are dealing with the concept of ‘Wills’. They are as follows:
- Indian Succession Act, 1925
- Hindu Law (Hindus Personal Law)
- Muslim Law (Muslims Personal Law)
- Indian Registration Act, 1908
Essentials of a Will
The essentials of a will are:
Legal declaration: The documents purporting to be a will, or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it. Further the declaration of intention must be with respect to the testator’s property. It is a legal document which has a binding force upon the family.
Disposition of property: In a Will, the testator bequeaths or leaves his property to the person or people he chooses to leave his assets/belongings to. A Hindu person, by way of his will, can bequeath all his property. However, a member of an undivided family cannot bequeath his coparcenary interest in the family property.
Takes effect after death: The Will is enforceable only after the death of the testator.
Registration of the will: According to section 18 of the Registration Act, the registration of a Will is not compulsory. Also, the SC in Narain Singh v. Kamla Devi has held that mere non-registration of the Will an inference cannot be drawn against the basics of the Will. However, it is advisable to register it as it provides strong legal evidence about the validity of the Will. Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen. It is to be released only to the testator himself or, after his death, to an authorised person who produces the Death Certificate.
Burden of Proof: As the testamentary disposition always speaks from the grave of the testator, the required standard of proof is very high. The initial burden of proof is always on the person who propounds the Will.
Alterations: If the testator wants to make a new will, he can’t discard the old will. The testator must attach the old will along with the new will. If there are any changes in the will, the testator can alter the will in the form of a codicil. The codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will. The purpose of codicil is to make some small changes in the Will, which has already been executed.
Kinds of Will
There are 4 kinds of will. They are:
Conditional Wills: A Will may be made to take effect on the happening of a condition. In Rajeshwar v. Sukhdeo the operation of the Will was postponed till after the death of the testator’s wife. However, if it is ambiguous whether the testator intended to make a Will conditional, the language of the documents as well as the circumstances are to be taken into consideration.
Joint Wills: Two or more persons can make a Joint Will. If the Joint Will is intended to take effect after the death of both, it will not be admitted to probate during the life time of either and are revocable at any time by either during the joint lives or after the death of the survivor.
Mutual Wills: Mutual Wills are also known as reciprocal Wills and its revocation is possible during the lifetime of either testator. In mutual wills, two or more persons may agree to make mutual Wills i.e. to confer on each other reciprocal benefits. The testators confer benefits on each other but if the legatees and testators are distinct, it is not a mutual Will. But if a testator has obtained benefit, then the claim against his property will be laid and if a joint Will is a single document containing the Wills of two persons, mutual Wills are separate Wills of two persons.
Privileged Wills: Privileged Wills are a special category of Wills and other general Wills are known as unprivileged Wills. A Will made by a soldier, an airman or a mariner, when he is in actual service and is engaged in actual warfare, would be a privileged Will. Section 66 of the Indian Succession Act provides for the mode of making and rules for executing privileged Wills. Both Sections 65 and 66 are special provisions applicable to privileged Wills whereas other sections relating to Wills are general provisions which will be supplementary to Sections 65 and 66 in case of privileged Wills.
Preparing the Will
Section 59 of the Indian Succession Act,1925 lays down the conditions for people who can make a will. According to it, people who can’t make a will are:
- People of unsound mind
- People who are mentally ill and insane
- Person who is of sound mind but is intoxicated at the time
Therefore, any person of sound mind who is not a minor (here, the minimum age criteria is 21) can make a will. The idea is that a person is understood to be capable of being a will if he has the capacity to understand what is written in it and comprehend the nature & effect of the disposition. The burden of proving that the maker of a will did so freely and when capable of making the will is upon the individual who propounds the will. If a person is normally sane but has fits of insanity at times and a will is made during the sound of his mind then, the will would be valid. Also, a Hindu married woman can dispose by Will only that property which she can alienate during her lifetime.
Forms and Formalities of a Will
Form of a Will: There is no prescribed form of a Will. For it to be effective,
It needs to be properly signed and attested. The Will must be initialled by the testator at the end of every page and next to any correction and alteration.
Language of a Will: A Will can be written in any language. No technical words need to
be used in a Will. The words used should be clear and unambiguous so that the intention of the testator is reflected in his Will.
Stamp Duty: No stamp duty is required to be paid for executing a Will or a codicil. A Will need not be made on stamp paper.
Attestation: A Will must be attested by two witnesses who must witness the testator executing the Will. The witnesses should sign in the presence of each other and in the presence of the testator. However, according to Hindu Law, a witness can be a legatee. Under the Parsi and Christian law, a witness cannot be an executor or legatee. A Muslim is not required to have his Will attested if it is in writing.
Registration: According to section 18 of the Registration Act, the registration of a will is not compulsory. The registration is strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity. A Will must be proved as duly and validly executed, as required by the Indian Succession Act. Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen. It shall be released only to the testator himself or, after his death, to an authorised person who produces the Death Certificate.
Execution of Will
A testator is a person who makes the will and the will comes into effect only after the death of the testator. For the execution of the will the testator can appoint anyone except the beneficiary of the will as an executor i.e. the person to whom the responsibility of the execution of the will is assigned and in failing to do so, an administrator can be appointed by a competent authority to administer the deceased persons estate.
Any person who can hold property can be a will’s beneficiary. This means that even a corporation, a juristic person, minors and someone of unsound mind can be a beneficiary of a will. With regards to the property that can be disposed of by a will, there are no restrictions which state that the testator must can dispose of the property. This means that the property in question must be self-acquired property. As concerns ancestral property, Section 30 of the Hindu Succession Act allows a Hindu to give away in his will his share in coparcenary property which is something that a Hindu is in other circumstances not permitted to do.
On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate i.e. an evidence of the appointment of the executor and unless revoked, is conclusive as to the power of the executor. The grant of probate to the executor however does not confer upon him any title to the property. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court grants probate. A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. It is only after this that the Will comes into effect.
Do’s and Don’ts of a Will
Making a will is a lengthy and necessary process which ensures that the property which the testator took care of during his lifetime, is in safe hands after his death too. Hence, it is very important to follow certain criteria.
The do’s of a will are:
- Take time to make a will, ensuring that any form of property, share, interest, etc is distributed equally among all beneficiaries.
- Use a professional to make a will.
- Choose the executors of the will well i.e. make sure that the people who are appointed as executors are responsible and capable enough.
- If the beneficiaries of the will are minors, make sure that the minors are appointed a guardian.
- Make sure that the will is signed and witnessed.
- Make sure that after your death, your will can be found easily.
- Make sure that your will is updated from time to time.
The don’ts of a will are:
- Don’t assume that the spouse or partner will automatically get everything after your death as the property will be divided equally between the children and the spouse.
- Don’t run the risk of leaving your children with nothing as if the sole beneficiary of the property is the spouse and if the spouse remarries, then the whole estate could pass onto the spouse’s new family.
- Don’t assume that the family can take care of things without a will as without a will, the family lacks the power to make many important decisions regarding the property.
- Don’t appoint the beneficiaries as witnesses.
- Don’t store the will in a deposit box as after your death, the family will need a probate to open the deposit box.
- Don’t fail to update the will from time to time.
Key Points for writing a Will
- Personal Details – You must state your name, father’s name, residential address, date of birth etc.,
- Declaration of Date – It is very important to clearly mention the date of preparing your will.
- Validate Free Will – You can mention that you are not under any influence and you are not forced to prepare this Will by any person.
- Provide Executor’s Details – Executor is the person who will implement/execute your will. Hence, clearly mention his/her name, address, your relationship with him/her, age etc.,
- Details of Assets & Beneficiaries – This is a very important section. List all immovable properties with clear addresses. Mention the movable assets like bank deposits, insurance, units of mutual funds etc. Mention the name of beneficiary(ies) for each asset. (For Mutual Funds – mention the Folio no’s)
- Signature – Sign the Will after mentioning the above details.
- Signature of Witnesses – You must get the will attested by minimum two witnesses. Make sure that they mention their father’s names and addresses.
Drafting of will is a very simple process. Although there is no fixed format for a will, make sure that legal experts are consulted for drafting a will for smooth transfer of property to beneficiaries after death.
Thus, the will is one of the most important statements made by a person as it gives the power to appoint any person as the beneficiary and it is necessary for every person to make a will so that the property is in safe hands even after their death.
Draft of Will
- Indian Succession Act,1925
- Ishwardeo Narain Singh Vs Smt. Kamta Devi, 1953
- Rajeshwar Misser Vs Sukhdeo Missir, 1947
- Indian Majority Act,1875
- “Wills & Succession Planning” by R N Lakhotia